Laudermilt v. USA

Filing 13

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
JORDAN LAUDERMILT,
Petitioner,
v.

Civil Action No. 5:15CV121
(Criminal Action No. 5:11CR10)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

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”),
filed

a

petition

pursuant

to

28

U.S.C.

§

2255

(Ҥ

2255”)

challenging the validity of his conviction and sentence.

This

matter was referred to United States Magistrate Judge James E.
Seibert under Local Rule of Civil Procedure 72.01.

The magistrate

judge issued a report and recommendation denying the motion.
Laudermilt

timely

recommendation.
affirms

the

filed

objections

to

the

report

and

For the following reasons, this Court adopts and

report

and

recommendation,

denies

the

petition,

overrules Laudermilt’s objections, and dismisses this civil action.

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).

I.

Background

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.
months

imprisonment

and

Laudermilt was sentenced to 120

three

years

of

Laudermilt then filed a notice of appeal.

supervised

release.

On appeal, Laudermilt

challenged his conviction by arguing that the district court (1)
committed plain error by admitting a 911 recording and allowing
unnecessarily

cumulative

testimony

from

responding

officers

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

certiorari.
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

2

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.

For relief,

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
accept it.
The government argues in response to the § 2255 motion that
Laudermilt

has

shown

no

deficiency

in

his

trial

counsel’s

performance beyond a mere assertion, which the government argues is
without merit.

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.

The

government further contends that the district court gave a jury
instruction on actual versus constructive possession that was
almost

exactly

the

same

as

defense

counsel’s

own

proposed

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.
found

that,

while

Laudermilt

believes

3

The magistrate judge
he

was

convicted

of

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.
explains

that

Laudermilt

Additionally, the magistrate judge

made

de

facto

admissions

of

having

brandished the firearm on tapes of his phone calls to his sister
from jail.
Accordingly, the magistrate judge found that there is no
support in the record for Laudermilt’s claim that his counsel was
ineffective

based

on

his

constructive possession.

purported

lack

of

understanding

of

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
recommendation.

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

4

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.
II.

Applicable Law

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
which

objections

were

made.

As

to

those

findings

to

which

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).

5

28

III.
A.

Discussion

Ineffective Assistance of Counsel
“[A] movant seeking 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

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).

6

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.
convicted
possession.

of

construction
Thus,

Accordingly, Laudermilt was not

possession

Laudermilt’s

claim

but
that

rather
his

of

actual

counsel

was

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
agreement.

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.
This

Court

further

finds

that

there

is

no

merit

to

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
indictment.

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

7

hands.”

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.
B.

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
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, the

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
by

the

district

court

is

debatable

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).
Upon review of the record, this Court finds that Laudermilt has not

8

made the requisite showing.

Accordingly, Laudermilt is DENIED a

certificate of appealability by this district court.

Laudermilt

may, however, request a circuit judge of the United States Court of
Appeals

for

the

Fourth

Circuit

to

issue

the

certificate

of

appealability.
IV.

Conclusion

For the reasons stated, the magistrate judge’s report and
recommendation

(ECF

No.

9/230)

is

AFFIRMED

AND

ADOPTED.

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

9

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

May 19, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

10