Love v. United States of America

Filing 735

MEMORANDUM OPINION AND ORDER for the reasons set forth herein, the Court GRANTS Movant's 704 letter-form motion to extend time to file; 724 motion for leave to file an affidavit in support of his § 2255 motion; and 730 motion to expan d the record. The Court DENIES Movant's 700 motion to reconsider and hold proceedings in abeyance; 705 letter-form motion to reconsider order reassigning case; 706 , 708 and 713 motions to amend; 707 motion to re-open previously deci ded issues; 714 motion to continue; 715 motion for judicial notice; 716 motion to submit interrogatories; 717 motion to compel; 719 motion for sanctions; 721 letter-form motion to seal; 729 motion to delay ruling as moot; 730 motion t o expand the record; and 732 motion to supplement the petition. The Court OVERRULES Movant's objections, ADOPTS the 699 Second Proposed Findings & Recommendation to the extent it is consistent with this Opinion, DENIES Movant's 564 and 592 § 2255 Petition and DIRECTS the Clerk to remove this case from the Court's docket. Signed by Judge Thomas E. Johnston on 9/30/2014. (cc: counsel of record and any unrepresented party) (skh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

TAWAYNE DEVONE LOVE,
Movant,
v.

CIVIL ACTION NO. 2:08-cv-00192
(Criminal No. 2:03-cr-00187-1)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Movant Tawayne Love, acting pro se, filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 [ECF 564]. Movant later filed in this case a second motion
to vacate, set aside, or correct sentence [ECF 592], which the Court construes as a supplement to
first § 2255 motion.
Since the filing of United States Magistrate Judge Mary E. Stanley’s Second PF&R [699],
Movant has––as he has throughout the duration of this case and in his underlying criminal case––
filed a litany of miscellaneous motions that are largely either meritless or untimely or both. For
the reasons that follow, the Court OVERRULES Movant’s objections, ADOPTS the Second
PF&R [ECF 699] to the extent it is consistent with this Opinion, and DENIES Movant’s § 2255
Petition [ECF 564, 592].

I. BACKGROUND
The full factual background and procedural history of this case is set out in exhaustive
detail in the First PF&R filed November 2, 2009, (ECF 666), the Order of May 21, 2010, (ECF
696), and the Second PF&R (ECF 699). In summary, on June 22, 2004, Movant pleaded guilty
before United States District Court Judge Joseph R. Goodwin pursuant to a written plea agreement
to possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c). Movant later twice moved to withdraw his guilty pleas, which motions Judge Goodwin
denied. Following several continuances of the sentencing hearing, Judge Goodwin sentenced
Movant on May 9, 2005, to a total term of imprisonment of 360 months, followed by a ten-year
term of supervised release. On March 6, 2006, the Fourth Circuit affirmed Movant’s conviction
and sentence. United States v. Love, No. 05–4538, 172 Fed. App’x 504 (4th Cir. 2006).
By Standing Order entered August 1, 2006, and filed in this case on March 25, 2008, this
action was referred to former Magistrate Judge Stanley for submission of proposed findings and a
recommendation (PF&R). Magistrate Judge Stanley filed her First PF&R on November 2, 2009,
recommending that the district judge deny the § 2255 motion and dismiss the case. (ECF 666.)
On December 16, 2009, Judge Goodwin adopted the PF&R in a Memorandum Opinion
and Order, denied Movant’s § 2255 motion, and dismissed the case from the docket. (ECF 673,
674.) More specifically, Judge Goodwin adopted the proposed findings and recommendations of
the magistrate judge as detailed in the First PF&R (ECF 666). (ECF 673.)

These adopted

findings included the rejection of Movant’s claim that he was actually innocent of the crimes to
which he pleaded guilty. (ECF 666 at 33–35.) The magistrate judge reasoned that this claim was

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previously rejected by Judge Goodwin and, because Judge Goodwin’s determination was upheld
on direct appeal, could not be re-litigated. Id at 35. The adopted findings also included the
finding that the Assistant United States Attorney did not breach the plea agreement because he did
not recommend a specific sentence when he recommended a sentence within the applicable
sentencing guideline range. Id. at 23–24.
On December 31, 2009, Movant timely filed a motion to alter or amend judgment pursuant
to Federal Rules of Civil Procedure 59(e), (ECF 675), as well as a motion to amend pleadings,
(ECF 676). By Order dated January 1, 2010, Judge Goodwin granted the motion to alter
judgment stating as follows:
In his Rule 59(e) motion, the petitioner argues that the court “procedurally
defaulted an actual innocence claim that had not been fully adjudicated on its
merits.” (Mot. Alter J. ¶ 5.) The petitioner argues the Magistrate Judge, in her
Proposed Findings and Recommendation, did not assess the affidavits that Love
had submitted to support his actual innocence argument. (Id.) Upon
reconsideration, I agree. Although the Magistrate Judge referred to the affidavits,
she did not assess their probative value. (Proposed Findings & Recommendations
[Docket 666] 34-35.) She correctly noted that the petitioner’s actual innocence
claim had already been rejected by this court, but she failed to consider the new
evidence submitted by the petitioner. (Id.) Therefore, I GRANT the petitioner’s
Motion to Alter or Amend this court’s December 16, 2009 Memorandum Opinion
Order by revoking my adoption of the Magistrate Judge’s Findings and
Recommendation and re-referring the petitioner’s actual innocence issue to the
Magistrate Judge.
The petitioner also objects that the issue of whether the government
violated the plea agreement was wrongly decided. His Motion to Amend the
Pleadings seeks to further bolster his argument on this issue. Since I have already
decided to re-refer the actual innocence issue to the Magistrate Judge, I also re-refer
the plea agreement violation issue and refer the petitioner’s Motion to Amend the
Pleadings [Docket 676] to the Magistrate Judge.
(ECF 677 at 1-2.) Movant subsequently filed a second motion to amend pleadings on March 29,
2010. (ECF 685.)

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By Order dated May 21, 2010, Magistrate Judge Stanley granted Movant’s first motion to
amend pleadings, (ECF 676), 2 and denied Movant’s second motion to amend pleadings, (ECF
685) (ECF 696.) On May 27, 2010, this case was transferred from Judge Goodwin to the
undersigned. 3 (ECF 697.)
On May 28, 2010, Magistrate Judge Stanley filed a Second PF&R [ECF 699]
recommending that this Court dismiss Movant’s remaining claims and enter a final judgment order
denying collateral relief.
II. STANDARD OF REVIEW
The Court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).
The Court is not, however, required to review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this
Court need not conduct a de novo review when a petitioner “makes general and conclusory
objections that do not direct the Court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Objections to the Second PF&R in this case were due on June 14, 2010, and Movant filed
objections on June 17, 2010. (ECF 709.) 4
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The Court notes that in the second PF&R, Magistrate Judge Stanley recommended that “Defendant’s Motion to
Amend Pleadings (ECF 676) be denied.” (ECF 699 at 17-18.) This recommendation is in error because the
magistrate judge granted the motion a week earlier in her May 21, 2010, order (ECF 696).
3

Movant is advised that Chief Judge Goodwin is conflicted out of criminal matters in this district, and as such his
letter-form Motion to Reconsider Order Reassigning Case [ECF 705] is DENIED.

4

Movant filed a letter-form motion on June 9, 2010, for a brief extension of time to file objections. (ECF 704.) For
good cause shown, the motion [ECF 704] is GRANTED, and the Court considers Movant’s objections as timely filed.

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III. DISCUSSION
As the record shows, Plaintiff is a prolific pro se filer. After the filing of the second PF&R
(ECF 699), he filed his objections to the PF&R, as was his right to do (ECF 709). He also filed
numerous other motions and documents (e.g. ECF 700, 703–708, 713–21, 723, 728–733.) These
motions have been or will be ruled upon elsewhere in this Opinion. Here, the Court will focus its
analysis on the matters set forth in Movant’s objections filed on June 17, 2010.
Plaintiff enumerates ten separate objections to the Second PF&R (ECF 709.) Judge
Goodwin’s January 1, 2010, Memorandum Opinion and Order re-referred to the magistrate judge
only three discrete issues to the magistrate judge: (1) “the actual innocence issue”; (2) “the plea
agreement violation issue”; and (3) the Movant’s motion to amend the pleadings [ECF 676]. The
other issues ruled upon by Judge Goodwin in his January 1, 2010, order are the law of this case and
are not subject to re-litigation at this late juncture. Stated differently, Judge Goodwin’s re-referral
of these specific three matters did not throw open the door to yet another round of argument on
matters that have been settled by Judge Goodwin or that Movant should have but did not
previously raise.
Of his ten enumerated objections, the Court will consider objections concerning the issues
of actual innocence and the alleged violation of the plea agreement. These objections are largely
scattered throughout the objections enumerated by Movant as objections 3 and 5–9. (ECF 709 at
11–19). The third issue Judge Goodwin referred to the magistrate judge–Movant’s motion to
amend the pleadings [ECF 676]––need not detain the Court because, as noted above, the
magistrate judge ruled in Movant’s favor on this motion in her May 21, 2010, Order and granted it.

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See ECF 696. The Court will not adopt the magistrate judge’s contradictory recommendation in
her May 28, 2010, Second PF&R to deny this motion. Accordingly, this objection is moot.
A.

Actual Innocence Claim

Movant objects to the magistrate judge’s proposed finding that no extraordinary
circumstances are presented in this case meriting an exception to the strong presumption of verity
of a defendant’s solemn declarations in open court affirming a plea agreement. Movant states that
he assumes that the magistrate judge’s analysis was based on United States v. Lemaster, 403 F.3d
216, 221 (4th Cir. 2005), a case cited by the magistrate judge in the Second PF&R. Movant
attempts to distinguish Lemaster and asserts that the “factual predicates of Lemaster are drastically
different than this case.” (ECF 709 at 12.)
A court may grant habeas corpus or § 2255 relief, irrespective of procedural default, if the
movant can show that he is “actually innocent” of the offense underlying his conviction or guilty
plea, and therefore relief must be granted to prevent a “miscarriage of justice.” Murray v. Carrier,
477 U.S. 478, 496 (1986); see also United States v. Maybeck, 23 F.3d 888, 893 (4th Cir. 1994). To
establish actual innocence, a movant must show that his guilty plea “has probably resulted in the
conviction of one who is actually innocent,” Bousley, 523 U.S. at 623–624 (citation omitted), and
must make that showing with “clear and convincing evidence” that was “not presented at trial.”
Calderon v. Thompson, 523 U.S. 538, 558–59 (1998). Moreover, “allegations in a § 2255 motion
that directly contradict the [Movant’s] sworn statements made during a properly conducted Rule
11 colloquy are always palpably incredible and patently frivolous or false.” Lemaster, 403 F.3d at
221 (internal quotation marks omitted). “[A] district court should, without holding an evidentiary
hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn

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statements.” Id. at 222.
A guilty plea may be rendered involuntary if the evidence shows “misunderstanding,
duress, or misrepresentation by others” demonstrating a constitutional deficiency. Blackledge v.
Allison, 431 U.S. 63, 76 (1977). In the Second PF&R, the magistrate judge thoroughly addressed
the actual innocence issue re-referred to her by Judge Goodwin.

The magistrate judge

summarized the pertinent procedural background, noting that Movant twice attempted to withdraw
his guilty plea and that Judge Goodwin conducted an evidentiary hearing on the motion, made
extensive findings, and denied the motion. (ECF 699 at 3–4.) The magistrate judge also noted
that Movant directly appealed the issue of whether Judge Goodwin erred in denying Defendant’s
motion to withdraw his guilty plea and cited pertinent portions of the parties’ appellate briefs
which explicitly addressed Movant’s claim of actual innocence. Id. at 4–6. The magistrate
judge then noted that the Fourth Circuit affirmed Judge Goodwin’s denial of the motion to
withdraw the guilty plea. The magistrate judge then carefully cited and discussed the legal
standards that bar assertion of claims of actual innocence in a collateral attack that were litigated
on appeal. Id. at 7–9. These authorities stand for the general rule that issues previously decided
on appeal will not be allowed to be recast under the guise of collateral attack, Boeckenhaupt v.
United States, 537 F.2d 1182, 1182–83 (4th Cir. 1976); and, that absent extraordinary
circumstances, allegations in a § 2255 motion that directly contradict a movant’s sworn statements
in a properly conducted Rule 11 colloquy are always palpably incredible, patently frivolous and
false, and a court should dismiss a § 2255 without holding an evidentiary hearing. Lemaster, 403
F.3d at 221.
Lemaster cited two cases as examples of the types of “extraordinary circumstances” that

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merit an evidentiary hearing rather than summary dismissal. The first case was Blackledge v.
Allison, 431 U.S. 63, 74 (1977). There, the Government conceded that the ineffectiveness of the
movant’s counsel rendered the movant’s guilty plea involuntary; thus, an evidentiary hearing was
warranted to determine if the prosecutor had orally agreed that the defendant could plead guilty
conditionally.

Id.

The second was Fontaine v. United States, 411 U.S. 213 (1973).

In

Fontaine, the movant made detailed factual allegations regarding alleged circumstances occurring
after his arrest and before his appearance in court. Id. at 214. The movant’s allegations
described physical abuse and also the movant’s hospitalization from a gunshot wound, which was
documented by records tendered in support of his § 2255 petition. Id. The records also showed
that a month following the plea the movant was again hospitalized for heroin addiction, for
aggravation of the earlier gunshot wound, and for other severe illnesses. Id. The Court held:
“On this record, we cannot conclude with the assurance required by the statutory standard
‘conclusively show’ that under no circumstances could the petitioner establish facts warranting
relief under § 2255.” Id. at 215.
The Court rejects Movant’s claim that, because he has tendered documentary evidence,
that is, affidavits, in support of his claims, he is necessarily entitled to an evidentiary hearing under
Lemaster. The magistrate judge mounted a thorough examination of Movant’s claims and the
affidavits he tendered in support of those claims. Notably, although Movant has throughout these
tortuous proceedings repeatedly attempted to pin the crack cocaine found in his bedroom on his
cousin, Anthony Smith, Movant has not tendered an affidavit from Mr. Smith, a fact noted by the
magistrate judge.

Also noted by the magistrate judge, this claim is undermined by the

declarations of one of the law enforcement officers who investigated Movant and the prosecuting

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attorney. As did the magistrate judge, the Court has reviewed the other affidavits tendered by
Movant prior to the filing of the Second PF&R, as well as the affidavits filed after the Second
PF&R. 1 The Court finds that the tendered affidavits have minimal probative value for the same
reasons articulated by the magistrate judge in her Second PF&R; thus, the magistrate judge’s
analysis is sound and is adopted by this Court. Unlike the Court in Fontaine, the evidence
submitted here conclusively shows that under no circumstances could Movant establish facts
warranting relief under § 2255. Because Movant has failed to demonstrate the existence of
extraordinary circumstances, and because his allegations in his § 2255 motion and supporting
evidence directly contradict his sworn statements in the properly conducted Rule 11 colloquy, they
are palpably incredible, and patently frivolous and false.
Finally, with respect to Movant’s contention that the magistrate judge erred in finding that
Movant had litigated his actual innocence claim on direct appeal, that assertion is meritless and is
beyond the scope of the narrow issue re-referred to the magistrate judge. Nonetheless, it appears
that Movant’s actual innocence assertions were litigated on direct appeal and are therefore barred
on collateral attack.
B.

Breach of Plea Agreement Claim

Movant’s other relevant objection concerns his claim that the Government violated the
plea agreement by recommending a sentence within the applicable sentencing guideline range.
Specifically, Movant objects to the magistrate judge’s recommendation that, because Movant did
not object at sentencing to this alleged error and did not raise this issue in his direct appeal, he has
procedurally defaulted this claim and must show cause and prejudice to raise it now. (ECF 709 at

1

Thus, the Court GRANTS Movant’s motions for leave to file affidavit and expand the record [ECF 724, 730].

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15–18.) He notes that the magistrate judge did not make this recommendation in her First PF&R.
Id. at 15. He also argues that he made this argument in his § 2255 motion and, thus, “has actually
plead[ed] the ‘cause’ component of procedural-default regarding this issue.” Id. at 16. He also
asserts that “it would appear that [he] would not have to establish ‘prejudice’”, citing with no
discussion, Santobello v. New York, 404 U.S. 257 (1971), but “to be safe” has amended his § 2255
to assert the prejudice component. Id. Movant also generally rehashes his argument that the
Government breached the plea agreement citing United States v. Hayes, 946 F.2d 230, 232 (3d Cir.
1991).
The Court observes that the narrow issue of whether the Assistant United States Attorney
breached the plea agreement has been now addressed in no fewer than three times by Judges of this
Court. First, by Magistrate Judge Stanley in the First PF&R (ECF 666 at 22). Second, by Judge
Goodwin in his December 16, 2009, Memorandum Opinion and Order (ECF 673 at 2–3). Third,
by Magistrate Judge Stanley in the Second PF&R (ECF 699 at 13–16.) With the benefit of these
filings, the Court has little difficulty rejecting Movant’s contentions. For the reasons stated by
Judge Goodwin and Magistrate Judge Stanley, there was no breach of the plea agreement,
Movant’s remaining arguments are without factual and legal merit, and his citation to legal
authority misplaced.

Accordingly, the Court OVERRULES Plaintiff’s objection to the

recommendation that Movant has procedurally defaulted his claim that the Government breached
the plea agreement.
In light of the Court’s ruling, Defendant’s motions are DENIED [ECF 700, 706–708, 713–
717, 719, 721, 729, and 732.
The Court has also considered whether to grant a certificate of appealability. See 28 U.S.C.

10

§ 2253(c). A certificate will not be granted unless there is “a substantial showing of the denial of
a constitutional right.” Id. at § 2253(c)(2). The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the constitutional claims by this Court is
debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller–El v.
Cockrell, 537 U.S. 322, 336–38 (2003); Slack v. McDaniel, 529 U.S. 437, 484 (2000); Rose v. Lee,
252 F.3d 676, 683–83 (4th Cir. 2001). The Court concludes that the governing standard is not
satisfied in this instance. Pursuant to Rule 11(a), Movant may not appeal the Court's denial of a
certificate of appealability, but he may seek a certificate from the court of appeals under Federal
Rule of Appellate Procedure 22. Accordingly, the Court DENIES a certificate of appealability.
IV.

CONCLUSION

For the reasons set forth herein, the Court GRANTS Movant’s letter-form motion to
extend time to file [ECF 704]; motion for leave to file an affidavit in support of his § 2255 motion
[ECF 724]; and motion to expand the record [ECF 730].
The Court DENIES Movant’s motion to reconsider and hold proceedings in abeyance
[ECF 700]; letter-form motion to reconsider order reassigning case [ECF 705]; three separate
motions to amend [ECF 706, 708, 713]; motion to re-open previously decided issues [ECF 707];
motion to continue [ECF 714]; motion for judicial notice [ECF 715]; motion to submit
interrogatories [ECF 716]; motion to compel [ECF 717]; motion for sanctions [ECF 719];
letter-form motion to seal [ECF 721]; motion to delay ruling as moot [ECF 729]; motion to expand
the record [ECF 730]; and motion to supplement the petition [ECF 732].
The Court OVERRULES Movant’s objections, ADOPTS the Second PF&R [ECF 699]
to the extent it is consistent with this Opinion, DENIES Movant’s § 2255 Petition [ECF 564, 592],

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and DIRECTS the Clerk to remove this case from the Court’s docket.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 30, 2014