Underwood v. United States of America

Filing 91

MEMORANDUM OPINION AND ORDER as to John Marshall Underwood, Jr.: The court overrules movant's 90 Objections; adopts and incorporates in full the 89 Proposed Findings and Recommendations of Magistrate Judge Cheryl A. Eifert; denies movant� 39;s 64 Motion to Vacate, Set Aside or Correct Sentence (2255) and dismisses this civil action with prejudice. Signed by Senior District Judge John T. Copenhaver, Jr. on 4/3/2020. (cc: counsel of record, any unrepresented parties, and the United States Magistrate Judge) (arb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOHN MARSHALL UNDERWOOD, JR.,
Movant,
v.

Civil Action No. 2:18-cv-00671
Criminal Case No. 2:17-cr-00029

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is movant John Marshall Underwood, Jr.’s
motion under 28 U.S.C. § 2255 to vacate, set aside or correct
sentence by a person in federal custody, filed April 26, 2018.
This action was previously referred to United States
Magistrate Judge Cheryl A. Eifert for submission to the court of
her Proposed Findings and Recommendation (“PF&R”) for
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).

On November

4, 2019, the magistrate judge entered her PF&R recommending that
the court deny movant’s motion, grant respondent’s request for
dismissal, and dismiss this civil action with prejudice.
filed timely objections to the PF&R on November 20, 2019.
Respondent has neither objected nor responded to movant’s
objections.

Movant

Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (first alteration added) (quoting 28 U.S.C. § 636(b)(1)).
In her PF&R, the magistrate judge assessed the
validity of movant’s three defenses to the charges against him
and found that none of them had merit or otherwise supported his
ineffective assistance of counsel claim.

See ECF No. 89.

First, the magistrate rejected movant’s argument that he did not
attempt to “persuade, induce, entice, or coerce” a minor — i.e.,
the undercover police officer acting as the fictitious “Abby” —
to engage in sexual activity because movant’s actions
constituted substantial steps toward achieving this goal.
U.S.C. § 2422(b); ECF No. 89 at 11–15.

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Second, the PF&R found

that evidence exists that contradicts movant’s claim that he did
not intend to engage in sexual activity with Abby.
at 15–17.

ECF No. 89

Third, the magistrate judge concluded that the

entrapment defense lacked merit.

Id. at 17–19.

In addition,

the PF&R concluded that neither the failure to move for
dismissal of the indictment nor counsel’s advice regarding

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available defenses constituted ineffective assistance of
counsel, and that movant could not contradict his guilty plea
insofar as he now asserts that he was not actively seeking an
underage sexual partner.

Id. at 19–24.

Movant objects to the PF&R’s application of the facts
in its conclusion that movant did not have a viable entrapment
defense.

ECF No. 90.

He argues that the PF&R did not

sufficiently address whether movant’s counsel, Assistant Federal
Public Defender Rhett Johnson, informed movant about an
entrapment defense and whether respondent’s threatened charges
were viable.

Movant maintains that he would have insisted on

proceeding to trial had Johnson informed him of an entrapment
defense.

Id. at 2.

In support of this defense, movant argues

that “the United States made at least 25 offers for the services
of the fictitious underage prostitute” and that movant
“repeatedly declined the United States ‘offer.’”

Id.

Moreover,

movant objects to the magistrate judge’s legal conclusions as to
his ineffective assistance of counsel claim because the PF&R did
not sufficiently address the cases movant cited supporting his
entrapment defense.

Id. at 3.

“Entrapment is an affirmative defense consisting of
‘two related elements: government inducement of the crime, and a
lack of predisposition on the part of the defendant to engage in

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the criminal conduct.’”

United States v. McLaurin, 764 F.3d

372, 379 (4th Cir. 2014) (quoting Mathews v. United States, 485
U.S. 58, 63 (1988)).

The magistrate judge addressed movant’s

argument, which he now repeats in his objections, that movant
“refused to have sexual contact with Abby on multiple occasions
despite the government’s repeated offers.”

See ECF No. 89

at 17.
The PF&R concluded that the evidence collected from
movant’s phones “unequivocally” showed that movant was
predisposed to entice underage girls to engage in illegal sexual
activity before he was ever contacted by “Jenn,” an undercover
alias assumed by a state police officer who posed as a
prostitute.

ECF No. 89 at 2, 18–19.

Jenn only contacted movant

after the West Virginia State Police received a tip from a
confidential informant that movant was soliciting prostitutes to
arrange for him to have sex with underage girls.
No. 82-2 at 9.

Id. at 18; ECF

Even after this initial solicitation, movant

continued to speak with Jenn, including asking her to send nude
pictures of Abby.

ECF No. 89 at 14, 19; ECF No. 82-2 at 10-11.

He also communicated with Abby directly and inquired about her
“sexual experiences and expressed a desire to be her boyfriend
and take care of her.”

ECF No. 89 at 19.

do not address these critical facts.

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Movant’s objections

The PF&R properly found

that movant was predisposed to commit the crime for which he was
convicted, dooming his entrapment defense.
Movant also does not specify what case law, if any,
supports his assertion that his former attorney’s advice against
pursuing an entrapment defense constituted ineffective
assistance of counsel.

Nor do movant’s conclusory assertions

support a finding that he had a viable entrapment defense.
Although Johnson originally advised movant to proceed to trial,
he did so because he believed that movant would not receive a
sentence above the 10-year mandatory minimum even if movant lost
at trial.

ECF No. 89 at 21.

However, Johnson convinced movant

that a plea deal was preferable after the government provided
notice that, if movant did not accept the plea deal offered, it
would seek a superseding indictment containing three additional
charges.

Id.

Two of the additional charges carried mandatory

minimum sentences of 15 years in prison, or 50 percent more than
movant was facing with the enticement charge.

Id.

Johnson

avers in his affidavit that he discussed these considerations
with movant and that he advised movant that it was not worth
risking another five years of incarceration to go to trial.
ECF No. 74 at 6–7.

As the magistrate judge aptly concludes,

movant fails to show that the advice he received from counsel

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See

was not within the range of competence demanded of attorneys in
criminal cases.

See ECF No. 89 at 21–22.

Finally, movant objects to the magistrate judge’s
failure to hold an evidentiary hearing.

Movant argues that his

affidavit raised a factual question that had Johnson informed
him of the entrapment defense, he would have insisted on going
to trial.

Yet, movant is not entitled to a hearing inasmuch as

he was clearly unable to state a claim that entitles him to
relief.
1970).

Raines v. United States, 423 F.2d 526, 529 (4th Cir.
Accordingly, the court denies this objection as well.
The court, accordingly, ORDERS that:

1. Movant’s objections to the PF&R be, and they hereby are,
overruled.
2. The magistrate judge’s PF&R entered November 4, 2019 be,
and it hereby is, adopted and incorporated in full.
3. Movant’ motion under 28 U.S.C. § 2255 to vacate, set aside
or correct sentence by a person in federal custody be, and
it hereby is, denied.
4. This civil action be, and it hereby is, dismissed with
prejudice.

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The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
ENTER: April 3, 2020

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