Laudermilt v. USA
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 9 THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND OVERRULING 11 PETITIONER'S OBJECTIONS: 1 motion under 28 U.S.C. § 2255 is DENIED. It is ORDERED that this civil action be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. Should he choose to appeal, he is ADVISED that he must file a notice of appeal within 60 days after the date of the entry of the judgment order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 5/19/2017. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 5/19/2017: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:15CV121
(Criminal Action No. 5:11CR10)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
AND OVERRULING PETITIONER’S OBJECTIONS
The pro se1 petitioner, Jordan Laudermilt (“Laudermilt”),
challenging the validity of his conviction and sentence.
matter was referred to United States Magistrate Judge James E.
Seibert under Local Rule of Civil Procedure 72.01.
judge issued a report and recommendation denying the motion.
For the following reasons, this Court adopts and
overrules Laudermilt’s objections, and dismisses this civil action.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
Laudermilt was charged in a one-count indictment for being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
The case went to trial, in which a
jury found Laudermilt guilty.
Laudermilt was sentenced to 120
Laudermilt then filed a notice of appeal.
On appeal, Laudermilt
challenged his conviction by arguing that the district court (1)
committed plain error by admitting a 911 recording and allowing
concerning that recording and (2) erred at sentencing in allowing
a four-level enhancement for use of a firearm by a prohibited
person during the course of the commission of another felony and in
including a criminal history point for convictions that resulted
from uncounseled pleas. The United States Court of Appeals for the
Fourth Circuit affirmed Laudermilt’s conviction and sentence in an
unpublished per curium opinion.
Laudermilt did not petition for
Laudermilt then filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255. In his motion, Laudermilt
alleges that his counsel was ineffective for (1) failing to
correctly advise him on the law regarding “constructive possession”
as it pertains to 18 U.S.C. § 922(g), thereby causing him to reject
a plea offer and continue to trial; and (2) failing to object to
jury instructions on actual versus constructive possession that
impermissibly highlighted individual pieces of evidence that had
been admitted at trial.
Specifically, Laudermilt argues that his
counsel repeatedly assured him that the government had to prove
actual possession and would be unable to do so.
Laudermilt requests (1) an evidentiary hearing and (2) that the
Court direct the government to re-offer him a plea agreement
containing an offer of a 63-month sentence, and permit him to
The government argues in response to the § 2255 motion that
performance beyond a mere assertion, which the government argues is
Specifically, the government contends that the
record shows that there was ample evidence showing that Laudermilt
actually possessed the gun in question and pointed it at his
girlfriend in front of witnesses and threatened to shoot her.
government further contends that the district court gave a jury
instruction on actual versus constructive possession that was
instruction. Laudermilt filed a reply to the government’s response
in which he reasserts his above-stated arguments.
Magistrate Judge Seibert recommended denying Laudermilt’s
motion, and Laudermilt filed objections.
The magistrate judge
constructive possession of the firearm, a review of the trial
transcript shows that there was ample evidence that he was in
actual possession of the firearm.
The magistrate judge notes that
two witnesses testified that Laudermilt brandished the firearm at
them while making threatening statements.
The magistrate judge
also points out that multiple law enforcement officers testified
that they heard Laudermilt threatening to kill his girlfriend when
they arrived at the scene.
Additionally, the magistrate judge
brandished the firearm on tapes of his phone calls to his sister
Accordingly, the magistrate judge found that there is no
support in the record for Laudermilt’s claim that his counsel was
The magistrate indicated that, at the
close of trial, Laudermilt’s counsel even requested that the Court
eliminate the constructive possession charge because all of the
evidence was of actual possession.
Thus, the magistrate judge
concluded that Laudermilt has proven neither deficient performance
nor prejudice, and that his motion should be dismissed.
Laudermilt objected to the magistrate judge’s report and
In his objections, Laudermilt argues that his
counsel advised him that, for a jury to find him guilty of actual
possession, the government must prove that he actually possessed
the weapon specified in the indictment.
Laudermilt believed there
was no evidence linking him to possession of the rifle actually
specified in the indictment, and he states that his counsel told
him that was what the government had to prove. Laudermilt contends
that he based his decision to go to a jury trial, rather than
accept a plea agreement, on this erroneous information. Laudermilt
further claims that both the government in its response and the
magistrate judge in his report and recommendation failed to address
this specific contention. Laudermilt argues that he is entitled to
an evidentiary hearing to determine the truth of his contention.
He goes on to state his belief that there is no distinction between
actual and constructive possession for the purpose of being found
guilty under § 922(g), and that his counsel incorrectly led him to
believe there was a distinction.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made.
Because Laudermilt filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
Ineffective Assistance of Counsel
“[A] movant seeking collateral relief from his conviction or
sentence through an ineffective assistance claim must show (1) that
deficiency prejudiced his defense.”
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
Strickland, 466 U.S. at 688.
There is a “strong presumption that
counsel’s representation was within the wide range of reasonable
Harrington v. Richter, 562 U.S. 86, 104
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
probability sufficient to undermine confidence in the outcome.’”
Id. (quoting Strickland, 466 U.S. at 694).
Laudermilt’s trial counsel’s performance did not fall below
reasonable professional standards because the trial transcript
shows that there was ample evidence showing that Laudermilt was in
actual possession of the firearm.
Accordingly, Laudermilt was not
ineffective based on his counsel’s purported lack of understanding
that he could he could be convicted of constructive possession even
if no witness “put the gun in his hands” (ECF No. 6/222 at 4) is
inconsistent with the record, the expected testimony at trial, and
his claim that his counsel tried to persuade him to enter a plea
Laudermilt’s trial counsel even urged the Court to
eliminate the constructive possession charge based on his argument
that the government’s entire case was of actual possession.
Laudermilt’s objection that the government and the magistrate judge
did not address his specific contention that the evidence did not
link him to possession of the rifle actually specified in the
Laudermilt argued in his petition that the specific
firearm named in the indictment was an heirloom incapable of
firing, but the government stated in its response that the evidence
at trial established that the firearm specified in the indictment
was “ful[ly] capable of firing” and that the witness testimony was
sufficient to “put [the firearm named in the indictment] in his
ECF No. 228 at 4.
The magistrate judge also found that
the evidence was sufficient to prove that Laudermilt “was in actual
possession of the firearm.” ECF No. 9/230 at 5. Accordingly, this
Court agrees with the magistrate judge’s finding that Laudermilt
has proven neither deficient performance nor prejudice, and that
his motion should be dismissed.
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 applicant in a case in which 28
appealability to take an appeal.
certificate of appealability in this matter.
Court finds that Laudermilt has not made 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
dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
Upon review of the record, this Court finds that Laudermilt has not
made the requisite showing.
Accordingly, Laudermilt is DENIED a
certificate of appealability by this district court.
may, however, request a circuit judge of the United States Court of
For the reasons stated, the magistrate judge’s report and
Accordingly, Laudermilt’s motion under 28 U.S.C. § 2255 (ECF No.
1/213) is DENIED.
Further, Laudermilt’s objections (ECF No.
11/232) are OVERRULED and his motion for judicial notice in the
criminal action (ECF No. 234) is DENIED AS MOOT.
It is ORDERED
that this civil action be DISMISSED WITH PREJUDICE and STRICKEN
from the active docket of this Court.
Should Laudermilt 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 must file
a notice of appeal with the Clerk of this Court within 60 days
after the date of the entry of the judgment order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
May 19, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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