Boswell v. USA
Filing
9
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 8 REPORT AND RECOMMENDATION, DENYING PETITIONER'S § 2255 1 MOTION AND OVERRULING PETITIONER'S OBJECTIONS. It is ORDERED that this civil action be DISMISS ED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/21/16. (copies to Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAWANTAYE BOSWELL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Civil Action No. 5:14CV131
(Criminal Action No. 5:11CR32)
(STAMP)
Respondent.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S § 2255 MOTION AND
OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Dawantaye Boswell (“Boswell”), filed this pro
se1 motion under 28 U.S.C. § 2255 challenging the validity of his
conviction and sentence. This matter was referred to United States
Magistrate Judge Robert W. Trumble under Local Rule of Civil
Procedure 72.01.
The magistrate judge held an evidentiary hearing
on one of the grounds stated in Boswell’s motion.
Counsel was
appointed to represent Boswell at the evidentiary hearing. Boswell
also filed a motion for leave to amend his petition to assert a new
claim.
The magistrate judge entered a report recommending that
Boswell’s § 2255 motion and his motion for leave to amend be
denied.
Boswell’s counsel filed objections to the report and
recommendation as to the portions of the petition on which she had
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
authority
to
represent
Boswell.
Boswell
then
filed
pro
se
objections as to the remainder of the report and recommendation.2
For the following reasons, this Court adopts and affirms the report
and recommendation, denies the motion for leave to amend, denies
the § 2255 motion, and overrules Boswell’s objections.
I.
Background
After a jury trial, Boswell was convicted of possession with
intent to distribute more than 280 grams of cocaine base within
1,000 feet of a protected location in violation of 21 U.S.C. §§ 860
and 841(a)(1) and (b)(1)(A), and establishment of manufacturing
operations in violation of 21 U.S.C. § 856(a)(2).
This Court
sentenced Boswell to a total of 235 months of imprisonment to be
followed by a total of six years of supervised release. This Court
imposed a two-level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1 based on this Court’s finding that Boswell
committed perjury at trial.
Subsequently, this Court reduced
Boswell’s sentence of imprisonment to 188 months under Amendment
2
Boswell filed his pro se objections seventeen days after the
report and recommendation was entered. However, Boswell’s counsel
filed a motion on August 2, 2016 requesting clarification as to her
authority to file objections to the report and recommendation and
requesting an extension of time for Boswell to file any pro se
objections. ECF No. 231. Because counsel and Boswell each filed
objections regarding different portions of the report and
recommendation, the request for clarification is denied as moot.
The request for an extension of time for Boswell to file pro se
objections is granted. Accordingly, the motion for clarification
and an extension (ECF No. 231) is GRANTED IN PART and DENIED IN
PART AS MOOT.
2
782 to the United States Sentencing Guidelines.
Boswell appealed
his conviction and sentence, and the United States Court of Appeals
for the Fourth Circuit affirmed. Boswell filed a petition with the
United States Supreme Court for a writ of certiorari, but was
denied.
Boswell then filed this motion to vacate his sentence under 28
U.S.C. § 2255.
He cites four grounds in his motion: (1) that the
government delayed his arraignment and appointment of counsel,
preventing him from collecting defense evidence; (2) ineffective
assistance of counsel for failure to seek a hearing under Franks v.
Delaware, 438 U.S. 154 (1978); (3) ineffective assistance of
counsel for failure to “look into” the process for selection of the
jury venire; and (4) ineffective assistance of counsel for failure
to present a plea offer to Boswell on the first day of trial.
Boswell also filed a motion for leave to amend his § 2255 motion to
include a new claim of ineffective assistance of counsel for
failing
to
properly
advise
Boswell
that
providing
perjured
testimony at trial could result in a sentencing enhancement for
obstruction of justice.
The government opposes this motion.
The
motion was fully briefed and argued before the magistrate judge.
The magistrate judge scheduled an evidentiary hearing as to
Ground 4 to determine whether Boswell’s trial counsel conveyed a
plea offer to him on the first day of trial.
The magistrate judge
also appointed counsel to represent Boswell in the evidentiary
3
hearing as to Ground 4 and as to Boswell’s motion for leave to
amend his petition.
After the evidentiary hearing, the magistrate
judge entered a report recommending that Boswell’s § 2255 motion
and his motion for leave to amend be denied.
Boswell’s counsel
filed objections to the report and recommendation as to Ground 4
and as to the denial of the motion for leave to amend.
Boswell
also filed pro se objections as to the remainder of the report and
recommendation.
II.
Applicable Law
Because Boswell’s counsel had limited authority in these
proceedings, this Court will consider both counsel’s objections and
Boswell’s pro se objections.
Accordingly, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which objections were made.
III.
A.
28 U.S.C. § 636(b)(1)(C).
Discussion
Section 2255 Motion
1.
Pre-Indictment Delay Claim
Boswell alleges that the government conspired to delay his
arraignment and appointment of counsel to impede his ability to
investigate the case and conduct necessary discovery.
Boswell
argues that he was therefore unable to obtain evidence showing that
he was not the person producing crack cocaine in his apartment.
A two-pronged inquiry is required when a petitioner alleges
that pre-indictment delay resulted in a violation of due process.
4
United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403 (4th
Cir. 1985).
“First, a court must assess whether the [petitioner]
has suffered actual prejudice, and the burden of proving such
prejudice is clearly on the defendant.”
Id.
“If the threshold
requirement of actual prejudice is met, the court must then
consider the Government’s reasons for the delay, balancing the
prejudice to the defendant with the Government’s justification for
delay.”
Id. at 403-04.
The core question is “whether the
Government’s action in prosecuting after substantial delay violates
‘fundamental conceptions of justice’ or ‘the community’s sense of
fair play and decency.’”
Id. at 404 (quoting United States v.
Lovasco, 431 U.S. 783, 790 (1977)) (emphasis added).
Further, if
delay results from the government’s good faith effort to initiate
criminal proceedings, “the Supreme Court has held that [such
conduct] ‘ . . . does not deprive [the defendant] of due process,
even if his defense might have been somewhat prejudiced by the
lapse of time.’”
United States v. Uribe-Rios, 558 F.3d 347, 358
(4th Cir. 2009) (quoting Lovasco, 431 U.S. at 796).
First, Boswell claims he was prejudiced by the delay because
it “prevented [him] from securing evidence that would have shown he
had been absent from his apartment on July 7, through the overnight
period of July 8, 2011, and that Jerome Ross (“Ross”) had full
access to the apartment and was seen in the immediate vicinity of
the apartment that night.”
ECF No. 167-3 at 3.
5
Specifically,
Boswell alleges that he was unable to obtain video surveillance
recordings from a bar showing that he was not at his apartment
those nights.
witness
who
He also alleges that he was unable to locate a
claimed
to
have
apartment door on July 7, 2011.
seen
Ross
banging
on
Boswell’s
Boswell argues that he was unable
to obtain this evidence because of the pre-indictment delay, and
that this evidence would have created reasonable doubt as to his
guilt.
However, Boswell fails to demonstrate that this evidence would
have
been
Further,
recovered
Boswell
had
fails
he
to
been
show
appointed
that
there
counsel
is
a
earlier.
reasonable
probability that the result of the trial would have been different
if this evidence had been obtained and presented at trial.
While
he argues that this evidence would have supported his testimony
that Ross was responsible for the drugs in his apartment, that
would not necessarily have lead to a different result. Substantial
evidence supported the jury’s finding that Boswell produced with
intent to distribute crack cocaine, and the jury rejected Boswell’s
defense that Ross was the actual culprit.
Second, even if Boswell were prejudiced by the delay, the
government had good cause for such delay and acted in good faith.
Boswell was arrested by West Virginia law enforcement officials on
July 8, 2011 for suspected robbery. State law enforcement officers
executed a warrant to search Boswell’s apartment for firearms and
6
ammunition in relation to the robbery, finding crack cocaine and
paraphernalia in plain view.
Based on that finding, federal law
enforcement officials executed a separate warrant to search the
apartment for drugs that same day, finding the same crack cocaine
and paraphernalia.
The government then filed a criminal complaint
naming Boswell for the offenses of conviction.
The government
asserts that it then presented the case to the next available
federal grand jury.
On August 1, 2011, the federal grand jury
returned the indictment.
Counsel was appointed for Boswell on
August 4, 2011, and Boswell was arraigned on August 10, 2011. This
Court finds that the government obtained an indictment as soon as
was possible and acted in good faith at all times.
Any resulting
prejudice caused to Boswell was slight and far outweighed by the
government’s good faith actions in initiating criminal proceedings.
2.
Ineffective Assistance of Counsel Claims
“[A] movant seeing collateral relief from his conviction or
sentence through an ineffective assistance claim must show (1) that
his
counsel’s
performance
was
deficient[,]
deficiency prejudiced his defense.”
and
(2)
that
the
United States v. Basham, 789
F.3d 358, 371 (4th Cir. 2015) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).
Counsel’s performance was deficient if
“counsel’s representation fell below an objective standard of
reasonableness
.
.
.
under
Strickland, 466 U.S. at 688.
prevailing
professional
norms.”
There is a “strong presumption that
7
counsel’s representation was within the wide range of reasonable
professional assistance.”
(2011)
(internal
Harrington v. Richter, 562 U.S. 86, 104
quotation
marks
omitted).
“The
Strickland
standard is difficult to satisfy, in that the ‘Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.’”
Basham, 789 F.3d at 371 (quoting
Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).
To show prejudice,
“[t]he movant must demonstrate ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would
have
been
different.
A
reasonable
probability
is
a
probability sufficient to undermine confidence in the outcome.’”
Id. (quoting Strickland, 466 U.S. at 694).
a.
Failure to Seek a Franks Hearing
Boswell argues that his counsel was ineffective in failing to
seek a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to
challenge the validity of the warrant to search his apartment for
drugs.
Specifically, Boswell argues that his counsel should have
sought a Franks hearing because the application and supporting
affidavit omitted facts regarding the alleged invalidity of the
prior warrant to search the apartment for firearms and ammunition
and allegedly inconsistent statements Ross gave to police regarding
the robbery investigation.
Boswell fails to show that his trial counsel was ineffective
in not seeking a Franks hearing, because Boswell fails to show that
8
he would have been entitled to a Franks hearing.
Upon request, a
court must hold a hearing to determine the validity of a warrant if
the defendant “makes a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard
for
the
truth,
was
included
by
the
affiant
in
the
warrant
affidavit, and if the allegedly false statement is necessary to the
finding of probable cause.” Franks v. Delaware, 438 U.S. 154, 15556 (1978). “To satisfy the Franks’ intentional or reckless falsity
requirement for an omission, the defendant must show that facts
were omitted . . . [making] the affidavit misleading,” and that the
omission was designed to mislead or was made in reckless disregard
of whether it would mislead.
United States v. Tate, 524 F.3d 449,
455 (4th Cir. 2008) (emphasis omitted).
However, “an affidavit
offered to procure a search warrant cannot be expected to include
. . . every piece of information gathered in the course of an
investigation.”
Id. (internal quotation marks omitted).
While Boswell identifies facts he claims were omitted from the
affidavit, he fails to show that their omission made the affidavit
misleading or that their inclusion would deprive the warrant of
probable cause.
Had the affidavit included the facts Boswell
alleges were omitted, the probable cause supporting the second
warrant
would
not
have
been
diminished
or
have
even
become
questionable. Further, to the extent that Boswell argues the first
warrant was invalid, making the second warrant invalid as a fruit
9
of the first, the Fourth Circuit held on direct appeal that the
evidence seized under the second warrant was not subject to
exclusion even if the first warrant were invalid.
3-7.
ECF No. 160 at
Thus, Boswell’s trial counsel’s performance did not fall
below reasonable professional standards because a request for a
Franks hearing would have been futile.
Similarly, because Boswell
was not entitled to a Franks hearing, he is unable to show that he
was prejudiced by his counsel’s failure to request a Franks
hearing.
b.
Failure to Object to the Jury Selection Process
Second, Boswell argues that his counsel was ineffective in
failing to “inquire” into the jury selection process.
He argues
that African-Americans and Asian-Americans constitute 1.79% and
“less than 1%” respectively of the Northern District of West
Virginia’s population.
ECF No. 167-3 at 6.
Boswell argues that
the jury pool did not include any African-Americans or AsianAmericans despite significant numbers of such persons in the
population, resulting in a violation of Boswell’s Sixth Amendment
right to a jury venire that is a fair cross-section of the
community.
He argues that a reasonable attorney in that situation
would have challenged the jury selection process to “establish a
record” regarding whether any racial group was systematically
excluded from the jury pool.
Id. at 7.
10
A defendant’s Sixth Amendment right to a petit jury selected
from a fair cross-section of the community is violated where: (1)
“a ‘distinctive’ group in the community” was excluded from the jury
venire; (2) “the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the
number of such persons in the community”; and (3) “that this
underrepresentation is due to systematic exclusion of the group in
the jury-selection process.”
(1979).
Duren v. Missouri, 439 U.S. 357, 364
Boswell fails to demonstrate why his attorney should have
objected to the racial composition of the jury venire other than
his assertion that “[t]he demographic profile of the [District]
would cause one to expect African-American and/or Asian[-American]
membership on any venire drawn from a fair cross-section of the
. . . population.”
allege
that
ECF No. 167-3 at 7.
African-American
or
However, Boswell does not
Asian-American
persons
were
systematically excluded in the jury-selection process, or that his
counsel had reason to believe that such persons were systematically
excluded.
Further,
for
the
same
reasons,
Boswell
fails
to
demonstrate that he was prejudiced by his counsel’s inaction.
Thus, Boswell fails to demonstrate that his Sixth Amendment rights
were violated as a result of his counsel’s failure to object.
c.
Failure to Convey a Plea Offer
Boswell argues that his counsel was ineffective in rejecting
a plea offer allegedly made on the first day of trial before
11
communicating the alleged offer to Boswell.
To prove ineffective
assistance of counsel regarding a plea offer, a petitioner must
show that defense counsel failed to convey a formal plea offer to
the petitioner, and that the petitioner was prejudiced by that
failure.
that,
“as
Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (holding
a
general
rule,
defense
counsel
has
the
duty
to
communicate formal offers from the prosecution to accept a plea on
terms and conditions that may be favorable to the accused”).
“To
show prejudice from ineffective assistance of counsel in a case
involving a plea offer, [the] petitioner[] must demonstrate a
reasonable probability that (1) they would have accepted the
earlier plea offer had they been afforded effective assistance of
counsel, and (2) the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it.”
Merzbacher v. Shearin, 706 F.3d 356, 366 (4th Cir. 2013) (internal
quotation marks omitted).
After reviewing the record, including the evidentiary hearing
transcript, this Court finds that the government did not make a
formal plea offer on the first day of trial.
The prosecuting
Assistant United States Attorney John C. Parr (“Parr”), and defense
counsel, Douglas Sughrue (“Sughrue”), both testified that plea
negotiations resulted in a formal plea offer in the form of a
proposed plea agreement, which seemingly satisfied all of Boswell’s
concerns.
ECF No. 235 at 3-40-42, 121, 150-51.
12
Sughrue conveyed
the offer to Boswell a week before trial, but Boswell refused to
sign the agreement.
ECF No. 235 at 121, 150-51.
The matter then
proceeded to trial. Parr testified that he “felt confident in this
case,” and that after this Court denied Boswell’s pretrial motions,
he “knew there was going to be a conviction.”
ECF No. 235 at 24.
Parr then asked Sughrue if Boswell “changed his mind now, has he
seen the light, and that was it.
remark.”
Id.
It was as much a[n] I-told-you-so
This comment did not contain any terms essential to
a plea agreement, or any terms that could be considered favorable
to Boswell.
Boswell argues that Parr’s comment constituted a plea offer
because it was in reference to the terms set out in the prior
formal proposed plea agreement.
However, Boswell rejected those
terms when he refused to accept the prior proposed plea agreement.
Parr’s comment did not restate the terms of the prior offer or
otherwise propose any terms that would be beneficial to Boswell.
Further,
Parr
testified
that
if
Sughrue
indicated
Boswell’s
willingness to plead guilty, the terms of any formal proposed plea
agreement would have been different than those contained in the
prior proposed plea agreement.
Id.
Thus, this Court finds that
Parr did not make a formal plea offer on the first day of trial.
Additionally, Boswell testified that after the first day of
trial Sughrue told him that Parr suggested to Sughrue that Boswell
should plead guilty to the indictment, ECF No. 235 at 168-69.
13
However, Boswell’s testimony was contradicted by that of Parr and
Sughrue.
They both testified that Parr did not suggest Boswell
should plead to the indictment and that his comment was not a
formal plea offer.
Id. at 115-16, 121-22.
Further, Sughrue
testified that had Parr even suggested a plea to the indictment,
Sughrue would have immediately communicated that suggestion to
Boswell.
Id.
Based on all of the testimony given, this Court
finds that Parr did not suggest to Sughrue that Boswell should
plead guilty to the indictment.
Further, even if Parr suggested
that Boswell should plead guilty to the indictment, that suggestion
does not constitute a formal plea offer that Sughrue was obligated
to convey to Boswell.
A formal plea offer is an offer “from the
prosecution to accept a plea on terms and conditions that may be
favorable
to
the
accused.”
Frye,
132
S.
Ct.
at
1408.
Any
suggestion by Parr that Boswell should have plead guilty to the
indictment did not include any “conditions that may be favorable to
the accused.”
indictment,
Accordingly, even if Parr suggested a plea to the
Sughrue
was
not
obligated
to
communicate
such
a
suggestion to Boswell.
Even if Parr’s comment and alleged suggestion that Boswell
plead guilty to the indictment constituted plea offers, they were
at best only informal plea offers.
Neither contained definite
terms that would be beneficial to Boswell, and they both lacked
sufficient definition for Boswell to show he would have accepted
14
those offers and that this Court would not have rejected them. See
Merzbacher, 706 F.3d at 369-70 (concluding that informal plea
discussions that set out some definite terms lacked sufficient
definition to conclude that the petitioner would have accepted it
without the prosecution canceling the offer or the court refusing
to accept it); Ramirez v. United States, 751 F.3d 604, 607-08 (8th
Cir. 2014) (concluding that an informal plea offer “that expressly
contained no promises or assurances” is not sufficient for a
showing of prejudice).
Boswell argues that he would have accepted
a plea offer at the time of Parr’s comment and alleged suggestion
because “circumstances had changed drastically since the last plea
negotiations,” as Boswell “had watched his jury be empaneled with
no persons of color, he had just witnessed his pre-trial motions go
down in flames, and was prepared for the trial court to rule
against him on necessary witnesses.”
ECF No. 236 at 5.
However,
Parr’s comment and alleged suggestion “contained no promises or
assurances,” and Boswell fails to even shown there was a reasonable
probability that the government would have extended a plea offer if
Boswell expressed his willingness to plead guilty.
F.3d at 608.
Ramirez, 751
Boswell “ha[d] no right to be offered a plea.”
Frye,
132 S. Ct. at 1410. Accordingly, Boswell fails to demonstrate that
he was prejudiced by Sughrue’s failure to communicate to him Parr’s
comment or suggestion.
15
B.
Motion for Leave to Amend
Boswell filed a motion for leave to amend his petition to add
a new ineffective assistance of counsel claim.
Specifically,
Boswell seeks to allege that his counsel was ineffective in failing
to advise him that a sentencing enhancement for obstruction of
justice could be imposed if this Court found that he committed
perjury at trial.3
Boswell argues that he would not have testified
at trial had he been advised of this possibility.
After a responsive pleading has been served, Federal Rule of
Civil Procedure 15(a) permits a party to amend a pleading “only by
leave of court or by written consent of the adverse party.”
R. Civ. P. 15(a).
Fed.
“[L]eave to amend shall be given freely, absent
bad faith undue prejudice to the opposing party, or futility of
amendment.
Where the statute of limitations bars a cause of
action, amendment may be futile and therefore can be denied.”
3
This Court rejects the assertion made at the evidentiary
hearing that the imposition of the two-level enhancement for
obstruction of justice is “an automatic thing that [the undersigned
judge] does” when a defendant testifies at trial and is convicted.
ECF No. 235 at 151.
The Court considered the recommendation
contained in the presentence report and did not impose the
obstruction of justice enhancement merely because the petitioner
exercised his constitutional right to testify but, rather because
his testimony at trial and other evidence showed, by a
preponderance of the evidence, that Boswell committed perjury by
giving false testimony concerning a material matter given with a
willful intent to deceive rather than as a result of either
confusion or mistake or faulty memory.
The Court made these
specific findings, following the law under United States v.
Dunnigan, 507 U.S. 87 (1993). ECF No. 158 at 12-13. While Boswell
certainly had a right to testify, he did not have a constitutional
right to commit perjury.
16
United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000)
(citations omitted). However, Rule 15(c) provides for the relation
back of amendments to the original pleading where “the claim or
defense asserted in the amended pleading arose out of the conduct,
transaction,
pleading.”
or
occurrence
set
forth
Fed. R. Civ. P. 15(c)(2).
.
.
.
in
the
original
A habeas petitioner’s new
claims asserted in a proposed amendment relate back to the original
petition only where they are related in “both time and type.”
Pittman, 209 F.3d at 318 (internal quotation marks omitted).
Boswell’s new ineffective assistance of counsel claim does not
relate back to his original petition.
He alleges that his counsel
failed to properly advise him, before trial, of the potential
obstruction
testimony.
of
justice
enhancement
if
he
provided
perjured
While this claim takes the same form as his original
ineffective assistance of counsel claims, it presents a completely
new set of allegedly deficient conduct by his counsel.
Boswell
argues that the claim arises out of the same occurrence as his
counsel’s alleged failure to communicate a plea offer after the
first day of trial.
He argues that he met with defense counsel
after the first day of trial and that defense counsel failed to
advise him that committing perjury could result in a sentencing
enhancement.
However, defense counsel’s obligation to convey a
formal plea offer to Boswell and his duty to advise Boswell as to
how the United States Sentencing Guidelines might be applied in his
17
case are completely separate duties, and the breach of one is
unrelated to the other.
Thus, Boswell’s new claim is based on
separate conduct by his trial counsel that allegedly violated a
separate duty.
Boswell also argues that his Court should broadly apply Rule
15(c) here because Boswell did not understand the distinction
between his new ineffective assistance claim and his prior direct
appeal regarding this Court’s imposition of the obstruction of
justice enhancement.4
However, “a broad view of ‘relation back’
would undermine the limitations period set by Congress in the
[Antiterrorism and Effective Death Penalty Act].”
F.3d at 318.
Pittman, 209
This Court does not find a compelling reason to
deviate from Congress’s express intent in limiting claims under
§ 2255.
Thus, this Court finds that Boswell’s new claim does not
relate back to his original petition.
Further, even if Boswell’s new claim related back to his
original petition, the amendment would be futile because he fails
to state a claim for ineffective assistance of counsel.
Boswell
argues
of
the
per
se
that
potential
defense
counsel’s
obstruction
of
failure
justice
to
advise
enhancement
him
was
incompetence resulting in a waiver of his Fifth Amendment right
4
On direct appeal, the Fourth Circuit affirmed this Court’s
application of the obstruction of justice enhancement based on ths
Court’s finding that Boswell committed perjury at trial. ECF No.
160 at 6-7.
18
against self-incrimination because he lacked true knowledge of the
consequences of doing so. Boswell argues he was prejudiced because
the obstruction of justice enhancement was applied at sentencing.
However, Boswell’s counsel was not obligated to advise him to not
commit perjury.
Regardless of the potential application of the
obstruction of justice enhancement, perjury is a criminal offense
that Boswell could be separately tried and convicted.
Boswell’s
decision to commit perjury was his own, and his culpability was not
due to any failure of his counsel.
C.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 and Section
2255 cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases. This memorandum opinion and order
is a final order adverse to the petitioner in a case in which 28
U.S.C.
§
2253(c)(1)
requires
issuance
of
a
certificate
of
appealability to take an appeal.
This
Court
finds
that
it
is
inappropriate
certificate of appealability in this matter.
to
issue
a
Specifically, this
Court finds that Boswell fails to make a “substantial showing of
the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by
the
district
court
is
debatable
19
or
wrong
and
that
any
dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
This Court concludes that reasonable jurists would not find this
Court’s ruling to be debatable.
Accordingly, Boswell is DENIED a
certificate of appealability by this district court.
Boswell may,
however, request a circuit judge of the United States Court of
Appeals
for
the
Fourth
Circuit
to
issue
a
certificate
of
appealability.
IV.
Conclusion
For the reasons set forth above, the magistrate judge’s report
and
recommendation
(ECF
No.
8/228)
is
AFFIRMED
AND
ADOPTED.
Accordingly, Boswell’s § 2255 motion (ECF No. 1/167) is DENIED,
Boswell’s motion for leave to amend his § 2255 motion (ECF No. 213)
is
DENIED,
recommendation
and
Boswell’s
(ECF
Nos.
objections
236,
238)
are
to
the
OVERRULED.
report
and
Further,
Boswell’s motion to expand the evidentiary hearing to include the
amended claim (ECF No. 220) is DENIED AS MOOT and his motion for
clarification and to enlarge time to file objections (ECF No. 231)
is GRANTED IN PART and DENIED IN PART AS MOOT.
It is ORDERED that
this civil action be DISMISSED WITH PREJUDICE and STRICKEN from the
active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
20
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
September 21, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
21
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