Carter v. United States of America
Filing
63
MEMORANDUM OPINION AND ORDER as to Donald R. Carter, II: The Court ADOPTS the 49 Proposed Findings and Recommendations of the Magistrate Judge and ORDERS that the Petitioner's 44 Motion to Vacate, Set Aside or Correct Sentence (2255), filed by Donald R. Carter, II, be DENIED and that this matter be DISMISSED from the Court's docket; the Court DENIES a certificate of appealability. Signed by Judge Irene C. Berger on 9/10/2013. (cc: Judge, Magistrate Judge VanDervort, USA, counsel, deft) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
DONALD R. CARTER II,
Petitioner,
v.
CIVIL ACTION NO. 5:12-cv-05731
(Criminal No. 5:10-cr-00229-01)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody (“Section 2255 Mot.”) (Document 44),
filed in this matter on September 21, 2012, wherein Petitioner asserts that his retained counsel
rendered constitutionally ineffective assistance by failing to reasonably investigate the loss
occasioned by his bank fraud conviction and by failing to engage a forensic accountant. (Section
2255 Mot. at 4.) By Standing Order (Document 46) entered on September 21, 2012, this action
was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for
submission to this Court of proposed findings of fact and recommendation for disposition,
pursuant to 28 U.S.C. ' 636. On March 18, 2013, the Magistrate Judge submitted a Proposed
Findings and Recommendation (“PF&R”) (Document 49), wherein it is recommended that this
Court deny the Petitioner’s Section 2555 motion and remove this action from the Court’s docket.
With permission of this Court, Petitioners’ objections to the PF&R were due by June 15, 2013.
(Order (Document 59)) (granting Petitioner’s second request for an extension of time to file
objections.) Petitioner timely filed objections on June 14, 2013.
Upon consideration of the Section 2255 Motion, the PF&R and Petitioner’s objections, the
Court finds that Petitioner’s objections to the PF&R are without merit, that the PF&R should be
adopted, and that Petitioner’s Section 2255 Motion should be denied.
I.
On January 6, 2011, in this Court, Petitioner pled guilty to an Information charging him
with bank fraud and tax evasion, in violation of 18 U.S.C. § 1344 and 26 U.S.C. § 7201
respectively. (United States v. Carter, Crim. No. 5:10-cr-0229 (S.D. W. Va. Sept. 23, 2011)).
Petitioner pled guilty pursuant to a plea agreement which included the parties’ agreed statement of
facts to support the charged offenses. (Plea Agreement at 20-23, United States v. Carter, Crim.
No. 5:10-cr-0229 (S.D. W. Va. Sept. 23, 2011), ECF No. 14).
Relevant to the instant motion, the
statement of facts provided, in part, that:
From at least early 2005 through August 31, 2006, Roy Leon
Cooper (“Cooper”) served as a vice president and loan officer for
United Bank . . . . Among other things, Cooper was responsible for
producing residential and commercial loans.
In November 2005, Donald R. Carter II (“Carter”)
purchased the twenty-three remaining undeveloped lots in the
Lamplighter Valley Subdivision, situated in the city limits of
Lewisburg, West Virginia, for approximately $18,600 per lot.
Carter desired to build ‘spec’ homes on the remaining lots. . . . These
types of loans represent an increased risk to the lender, which is
generally offset with stricter underwriting requirements and a higher
interest rate on the mortgage.
Carter could not obtain multiple construction loans for
‘spec’ homes in his own name at one time because, among other
things, Carter’s individual financial circumstances and United
Bank’s individual lending limits and underwriting criteria.
In late 2005 or early 2006, Cooper and Carter devised a plan
to secure financing for Carter to build ‘spec’ homes on the
Lamplighter lots. Carter’s friends and family members acted as
2
‘straw buyers’ and applied for one-year, interest-only mortgages
from United Bank to purchase a lot from him and obtain a
construction loan in their name to build a residential home in the
Lamplighter Valley subdivision.
Although it would appear to United Bank that the straw
buyers were building ‘second’ homes in the Lamplighter
[subdivision] for their own use and enjoyment, none of the straw
buyers ever intended to move to the . . . subdivision or treat the new
construction as a second home. Further, none of the straw buyers
intended to pay the mortgage payments or participate in the
construction of the home. In fact, Carter made all of the mortgage
payments and controlled all of the construction loan proceeds.
In exchange for obtaining the loans, Carter generally paid
each straw buyer $15,000 per loan closed by Cooper.
....
Among other loans closed on April 13, 2006, Cooper
simultaneously closed loans for lots 15 and 19 of the Lamplighter
subdivision for two of Carter’s relatives . . . a married couple. . . .
The construction loan on each lot was $300,104.03. . . .
The couples’ residential loan applications . . . contained a
number of material false statements intended to mislead United
Bank into funding the loans [including false pay stubs indicating the
couple made approximately $80,000 a year although the couple
actually earned $30,000 per year]. . . .
After the construction loans closed, Carter began drawing
loan proceeds, but misappropriated a portion of the construction
funds for personal expenses. . . .
As of October 2006, Carter only partially completed four
homes, which United Bank was forced to short-sale each property at
a loss. . . . In total, from January to August 2006, Cooper approved
sixteen lot purchases and construction loans for Carter in the
Lamplighter Valley subdivision totaling $4,483.480. As of
October 2006 when Cooper left the employment of United Bank,
Carter had drawn down $1,957,630.31 in loan proceeds.
3
(Plea Agreement, Ex. B. Stipulation of Facts (Document 14) at 21-22.) Additionally, the parties’
plea agreement also contained the parties’ specific agreements relative to sentencing guideline
calculations. (Plea Agreement ¶ 13.) Germane to the instant motion, the parties agreed that
Section 2B1.1 of the United States Sentencing Guidelines applied to a violation of 18 U.S.C. §
1344 (bank fraud) and that the offense level would be determined by beginning with a base offense
level of seven. (Id.) Additionally, Petitioner and the United States agreed to certain specific
offense characteristic enhancements. Specifically, they agreed that the base offense level should
be increased by sixteen levels because the loss amount was between $1 million and 2.5 million
(U.S.S.G. § 2B1.1(b)(1)(I)), that a two level enhancement was warranted because the offense
involved sophisticated means (U.S.S.G. § 2B1.1(b)(9)(C)) and that Petitioner derived more than
$1 million in gross receipts (U.S.S.G § 2B1.1(b)(14)(A)1. (Id.)
On September 21, 2011, during sentencing, the Court found that Petitioner had a Total
Offense Level of twenty-four, after consideration of the three-level reduction for acceptance of
responsibility, and a Criminal History Category of one. This Court sentenced Petitioner to
fifty-one months imprisonment, a three-year period of supervised release, and $200 special
assessment fee. (United States v. Carter, Crim. No. 5:10-cr-0229 (S.D. W. Va. Sept. 23, 2011)).
The Court also ordered Petitioner to pay restitution of $1,957.630.31 of which Petitioner is jointly
and severally liable with Roy Leon Cooper.2 Judgment was entered on September 23, 2011.
1
Petitioner’s plea agreement also contained a reservation of certain appellate rights and a waiver of others.
Particularly, Petitioner reserved his right to appeal the Court’s determination of his adjusted offense level, before
consideration of acceptance of responsibility, if it differed from what was stated in Paragraph 13. (Plea Agreement ¶
14.) However, he waived his right to appeal any sentence of imprisonment or fine on any ground so long as his
sentence of imprisonment or fine was below or within the Sentencing Guideline range corresponding to offense level
27. (Id.) He also waived his right to challenge his plea, conviction and sentence by post-conviction collateral attack.
(Id.) However, he maintained the right to seek review for ineffective assistance of counsel. (Id.)
2
Through the plea agreement, the parties agreed that Petitioner owed restitution and that he would not “appeal any
4
Petitioner did not appeal his conviction or sentence. Consequently, his conviction became final on
October 7, 2011, when his opportunity to appeal expired.
(See Fed.R.App.P. 4(b)(1)(A)).
Although Petitioner’s appellate waiver precludes a direct appeal and post-conviction review of
most issues relative to his sentence and conviction, the waiver does not prevent a post-conviction
challenge to the effectiveness of counsel. (Plea Agreement ¶ 14.)
II.
On September 21, 2012, Petitioner filed the instant Section 2255 Motion (Document 44).
In his only challenge, Petitioner asserts that his trial counsel was ineffective when counsel failed to
employ a forensic accountant, as requested, to verify the loss amount attributed to Petitioner as a
result of his conviction for bank fraud. (Section 2255 Motion at 4.) Petitioner contends that he
informed his counsel that the plea agreement’s inclusion of an enhancement based on the $1.9
million loss was inaccurate and that he desired to contest it. (Id.) However, his counsel did not
perform the requested investigation of the loss amount or contest the enhancement or his major
role in the conspiracy.3 (Id.) Petitioner asserts that he engaged a forensic accountant after his
sentencing and that the accountant’s findings support his previously held position relative to the
loss amount. Petitioner argues that his attorney’s failure to perform a “basic investigation”
renders the representation ineffective. (Id.) Petitioner lists his counsel as Michael Callaghan for
his arraignment, plea and sentencing. (Id. at 10.) Petitioner requests his “sentence to be vacated
or, in the alternative, a hearing be granted on the issues raised.” (Id. at 13.)
order of the District Court imposing restitution unless the amount of restitution imposed exceeded 1,957.630.31.”
(Id. ¶ 5.) Petitioner further agreed “[t]hat he and other coconspirators derived $1,957,650.31, more or less, in gross
proceeds from certain bank fraud offenses, i.e., violations of 18 U.S.C. § 1344.” (Id. ¶ 6.)
3
Notwithstanding Petitioner’s assertion, the applicable advisory guideline calculation did not include any
adjustment or enhancement for his role in the offense pursuant to Section 3B1.1. Consequently, the Court will not
consider any argument relative to Petitioner’s “major role” in the offense.
5
Petitioner attached to his Section 2255 Motion his signed affidavit (Document 44 at
14-15), wherein he expounds on his challenge. He contends that his conduct did not comport with
the Government’s theory of the case inasmuch as it believes that he applied for and obtained bank
funds and these funds were never used for building homes. He insists that he used the bank
monies in the completion of the construction project and that he asked his counsel to investigate
“how the funds were disbursed.” (Id. at 14.) Petitioner asserts that instead of investigating the
loss amount, his counsel informed him of the government’s plea offer and advised that it would be
in his best interest to accept it. He further asserts that his counsel told him that challenging the
Government’s factual assertions “would lead to withdrawal of the offer and a much harsher
sentence,” but that if he accepted the plea he would “most[] likely receive a probationary term or at
worst home confinement.” (Id. at 15.)
Petitioner asserts that he later learned that the
government’s loss calculation could have been challenged and that the loss amount was incorrectly
attributed to him. According to Petitioner, “[h]ad [a forensic review] been done [he] would not
have entered the plea that [he] did.” (Id. at 15.) Finally, Petitioner contends that the fault lies
with his attorney, who “fail[ed] to explore all possible defenses” on his behalf. (Id.) Petitioner
did not support his motion with any report or documentation from the post-conviction forensic
accountant’s investigation.
In his PF&R, the assigned Magistrate Judge considered Petitioner’s contention that his trial
counsel did not perform an investigation into the charged offense and found that Petitioner’s
counsel was not ineffective. In so doing, Magistrate VanDervort first found that Petitioner failed
to carry his burden inasmuch as he made only bare allegations that his counsel was ineffective and
did not allege with specificity what the investigation would have revealed and how it would have
6
altered the outcome of the District Court proceedings. (PF&R at 7.)
As a second ground for his
determination, the Magistrate Judge assumed, for purposes of issuing a recommendation, that
Petitioner’s allegations were sufficient and that his counsel failed to conduct an investigation into
the loss amount used in his sentence calculation. Notwithstanding these assumptions, Magistrate
Judge VanDervort found that Petitioner did not receive ineffective representation inasmuch as the
losses from his offenses of conviction were in the records of the victimized bank and the IRS and
that the loss amounts were easily and accurately calculated. (PF&R at 7.) The Magistrate Judge
asserted that Petitioner “would have had to knock well over $1 million off of those calculations” to
have an impact on his applicable advisory guideline sentence and that an attorney’s decision not to
conduct an investigation in this regard “cannot be said to have fallen below an objective standard
of reasonableness. (PF&R at 7-8.) Finally, Magistrate Judge VanDervort considered how the
United States Sentencing Guidelines applied to the determination of the loss amount used in the
Section 2B1.1 calculation by reviewing the definitions of “actual loss” and “intended loss.”
(PF&R at 8) (discussing U.S.S.G §2B1.1, comment. (n.3) wherein the general rule is set forth that
“loss is the greater of actual loss or intended loss” subject to certain exclusions.) The Magistrate
Judge found that Petitioner “significant[ly] benefit[ted]” from his plea agreement because it
allowed for a certain loss figure when the Court could have found that his “actual loss” and
“intended loss” might have been higher. (PF&R at 8.) Magistrate Judge VanDervort asserted that
a challenge to the plea agreement provision may have resulted in this Court finding that “the
reasonably foreseeable pecuniary harm” or the “intended pecuniary harm” from the bank fraud
was the amount of the approved loans or $4,483,480. (PF&R at 8-9.) The Magistrate Judge found
that application of the full loan amounts in the guideline calculation would have resulted in a
7
higher advisory guideline sentencing range. Magistrate Judge VanDervort also noted that if
Petitioner falsely or frivolously contested the loss amount, he would have lost credit for his
acceptance of responsibility. In either scenario, his guideline sentence may have been higher,
resulting in a sentence longer than that imposed. Consequently, the Magistrate Judge found that
Petitioner was not prejudiced by the failure of his counsel to further investigate the loss attributed
to his bank fraud conviction. Given the finding that Petitioner was competently represented
throughout the criminal proceedings, the Magistrate Judge recommended that this Court deny the
Section 2255 Motion and remove this matter from the docket. (PF&R at 9.) In his full
consideration of Petitioner’s argument, the Magistrate Judge determined that an evidentiary
hearing was not warranted because the record conclusively revealed that Petitioner was not
entitled to relief. (PF&R at 6.n.2.)
III.
Petitioner has timely filed objections to the PF& R wherein he asserts two specific
challenges. (Objection to the Proposed Findings and Recommendations of Magistrate Judge R.
Clarke VanDervort (“Pet.’s Obj.”) (Document 62)).
This Court Ashall 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). However, the Court is not 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 party Amakes general and conclusory objections that do not direct the Court to a
8
specific error in the magistrate=s proposed findings and recommendations.@ Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir.1982).
In a demonstration of a violation to the Sixth Amendment right to effective assistance of
counsel, an aggrieved defendant must prove: (1) deficient performance by his counsel and (2) that
this deficient performance was prejudicial. United States v. Baker, 719 F.3d 313, 318 (4th Cir.
2013) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The United States Supreme
Court instructed, in Strickland, that a lawyer’s performance is deficient when the representation
falls “below an objective standard of reasonableness.” (Strickland, 466 U.S. at 688). The Court
must review the particular facts of the case in view of reasonably effective assistance under
“prevailing professional norms.” (Id.) To avoid Monday morning quarterback scenarios, “[a] fair
assessment of attorney performance requires . . . [consideration of] conduct from counsel’s
perspective at the time.” (Id. at 689.) “[A] defendant must overcome ‘a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’” (Baker,
719 F.3d at 318) (quoting Strickland, 466 U.S. at 689.)
However, an error by counsel does not automatically result in setting aside the criminal
conviction, judgment or sentence. Instead, counsel’s deficient performance must be prejudicial to
the defendant. The prejudice prong, or the second part of the test, is satisfied only “if a petitioner
can demonstrate a ‘reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.’” (Mueller v. Angelone, 181 F.3d 557, 579 (4th
Cir. 1999) (quoting Strickland, 466 U.S. at 694.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, 466 U.S. at 694.) At bottom,
9
the “ultimate focus of inquiry [on a claim for ineffective assistance of counsel] must be on the
fundamental fairness of the proceeding whose result is being challenged.” (Id. at 696.)
IV.
Before the Court considers Petitioner’s asserted objections, the Court finds that Petitioner
failed to object to the Magistrate Judge’s finding that he did not carry his burden in demonstrating
his counsel’s ineffectiveness when he failed to specifically assert what the requested investigation
would have revealed and how it would have altered the outcome of the District Court proceedings.
Instead, in his objections, Petitioner contends that his forensic accountant, Robert Rufus, a CPA
from Rufus and Rufus, found that based on the “records he examined,” the loss attributed to
Petitioner was “under one million dollars[.]” (Pet.’s Obj. at 4.) It is the Petitioner’s burden to
show that his counsel’s performance was deficient and that the deficiency was prejudicial.
However, Petitioner does not expound on the records reviewed. Indeed, he has not provided the
Court with any of these records or Mr. Rufus’ calculations. Even if the Court were to credit
Petitioner’s contention that his counsel’s performance was deficient in the failure to conduct a
reasonable investigation, or to engage a forensic accountant, he has failed to provide any evidence
of prejudice beyond his “bare bone” contention.
According to Petitioner, the actual loss
attributed to him should have been under one million dollars and not the $1,957,630.31, he
stipulated to in his plea agreement. Petitioner, through his accountant, failed to offer any
calculation of the construction costs of the Lamplighter properties or demonstrate how such costs
were paid. He has neither demonstrated nor disclosed any evidence of monies that should have
been deducted from the loss amount because he did not receive the same, any expense or monies
his counsel should have asserted did not apply to the loss amount or the offense of conviction for
10
bank fraud, or any evidence of monies improperly included in the loss figure. (See U.S.S.G.
§2B1.1, comment. (n.3(D)(i))) (providing that loss amount shall not include interest, finance
charges, late fees, penalties . . . or other similar costs.) Petitioner has not shown that a forensic
review would have revealed that certain credits against the loss should have been applied. (See
U.S.S.G. §2B1.1, comment. (n.3(E))). Instead, he states in his objection, that “[t]he records used
by Mr. Rufus to reach his conclusion are available and can be submitted for review.” (Id. at 5.)
The opportunity and time for the production of this evidence was before the Petitioner, yet he
failed to produce the same. Petitioner has merely submitted the Affidavit of Mr. Rufus, wherein
Mr. Rufus states that an examination was completed that led him to the opinion that the loss
amount should be lower. (Affidavit of Robert Rufus (Document 62) at 2). Consequently, the
Court agrees with the Magistrate Judge that Petitioner has failed to show to a reasonable
probability that had an investigation into the loss amount by a forensic accountant been pursued by
his counsel, the result of the proceeding would have been different. Therefore, the Petitioner has
not demonstrated his entitlement to relief.
Given the foregoing finding, the Court finds that Petitioner’s objection that the Magistrate
Judge erred in failing to conduct an evidentiary hearing is without merit. Section 2255 of Title 28
provides in relevant part that
Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a
prompt hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.
28 U.S.C. § 2255(b) (emphasis added). For the reasons previously discussed, the records before
the Court do not conclusively demonstrate that Petitioner would not have pled guilty to the charge
11
of bank fraud or that his sentence would have been different had counsel engaged a forensic
accountant. Moreover, despite the Magistrate Judge’s clear admonition regarding the lack of
evidence before the Court on his failure to investigate claim, Petitioner failed to present in his
objection any evidence supporting his purported expert’s opinion about a required reduction to the
loss amount. He has simply asserted that it would be available without providing an explanation
as to why it was not presented with the Section 2255 motion or with the objection. Upon
consideration of the foregoing, the Court finds that the record conclusively establishes that the
Petitioner is not entitled to relief in this matter. Consequently, Petitioner’s objection to the
Magistrate Judge’s failure to conduct an evidentiary hearing is overruled.
While the above findings are sufficient to dispose of Petitioner’s objections, the Court will
consider briefly the balance of his claim. Petitioner argues that the Magistrate Judge erred when
he concluded that the plea agreement was advantageous to the Petitioner because without his
specific plea agreement, the Court could have found him liable for over $4,000,000 based on any
consideration of the intended loss from Petitioner’s criminal conduct. Petitioner argues that on
the day after his plea hearing, he met with Mr. Rufus and that Mr. Rufus “agreed to investigate the
validity of the amount of fraud and tax liabilities[.]”4 At some point, Mr. Rufus concluded that
the “actual loss attributed to [him]” was lower than the Government represented because “over one
million dollars alleged to have gone to Carter illegally was actually spent on construction costs for
the project and should not have been used to enhance the guideline amounts.” (Pet.’s Obj. at 4.)5
4
Petitioner contends he was accompanied “by an attorney (not trial counsel)” to this meeting. Petitioner does not
explain what prompted this meeting with the CPA, why his trial counsel did not participate in the meeting or identify
the attorney who accompanied him to the meeting.
5
Additionally, Petitioner asserts that Mr. Rufus also concluded that the Government’s calculation of the tax loss
amount was overstated. (Pet.’s Obj. at 4.) Petitioner states that Mr. Rufus determined that the delinquent tax amount
attributed to him was $336,580, instead of that calculated by the Government to be over $400,000. This figure was
12
According to Petitioner, this argument was never presented to the Court or the Government by
defense counsel prior to the sentencing hearing. Petitioner also asserts that Mr. Rufus contacted
his trial counsel to inquire why an investigation of the loss amounts was not performed prior to
entering the plea agreement, and the attorney purportedly “admitted” he did not hire a forensic
accountant and that he accepted the Government’s numbers as reasonable. (Pet.’s Obj. at 4.)
The Court does not find this objection sufficient to refute the Magistrate Judge’s findings.
This is so, particularly, where there is a lack of evidentiary support for the purported expert’s
conclusion. Moreover, the facts of this case render Petitioner’s objection immaterial. As the
Magistrate Judge correctly explained, the applicable Sentencing Guideline defines loss as the
“greater of actual loss or intended loss.”
U.S.S.G. §2B1.1, comment 3(A).
Included in
Petitioner’s presentence investigation report, without objection and as adopted by the court,
Petitioner and Cooper facilitated, through Petitioner’s family members, the fraudulent lending of
at least twelve construction loans. In total, Cooper obtained approval of sixteen lot purchases and
construction loans from United Bank for Petitioner in the Lamplighter Valley community which
totaled 4,483.480. When the loan irregularities became known to United Bank in October 2006,
Petitioner had drawn down $1,957,630.31, and only four homes were partially completed. United
Bank had to short-sale these homes for a loss, and eleven lots remained with United Bank with
mortgage balances that exceeded the value of the undeveloped lots.
United Bank sought
reimbursement of the monies drawn on the loan from its insurance carrier, who paid it $1.9 million
dollars as a result of Petitioner’s criminal conduct for bank fraud. The loss to United Bank, and its
reliance on its insurance coverage, was reasonably foreseeable to Petitioner given the number of
communicated to the prosecuting attorney who subsequently agreed to accept Mr. Rufus’s calculation and lowered
Petitioner’s tax loss liability. (Pet.’s Obj. at 4.) At sentencing, the Court accepted the parties’ agreement, on the use
of the lower tax liability amount, for sentencing.
13
homes he sought to build, the misrepresentations made to United Bank to obtain the loans (which
included overstatements of income of actual loan-holders who would not be able to repay the
loans), and the sums of loan money misappropriated by Petitioner for his personal expenses and
gifts to Cooper. Consequently, the actual loss to the victim of his crime, United Bank, was
sufficient to support the Court’s finding that the specific sentence enhancement of Section
2B1.1(b)(1)(I) was warranted. Petitioner’s assertion, that his counsel’s failure to investigate the
loss amount was prejudicial, is not borne out from the “opinion” of his forensic accountant. It
does not appear on the record before the Court that the investigation would have yielded a
favorable outcome that would have resulted in the application of a loss amount lower than one
million dollars. Given the immateriality of Petitioner’s objection to the Magistrate Judge’s
“intended loss” finding, a finding which does not warrant further review, the Court overrules
Petitioner’s objection.
V.
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence by a Person in Federal Custody (“Section 2255 Mot.”) (Document 44)
be DENIED and that this matter DISMISSED from the Court’s docket.
The Court has additionally considered whether to grant a certificate of appealability. See
28 U.S.C. ' 2253(c). A certificate will not be granted unless there is Aa substantial showing of the
denial of a constitutional right.@ Id. ' 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
14
debatable or wrong and that any dispositive procedural r
e
a
p
ruling is likewise debatab
ble. Miller-El v.
Cockrell, 537 U.S. 32 336-38 (2
,
22,
2003); Slack v. McDanie 529 U.S. 473, 484 (20
k
el,
000); Rose v. Lee,
252 F.3d 676, 683-8 (4th Cir. 2001). The Court conc ludes that th governing standard i not
d
84
he
is
satisfied in this instan
nce. Accor
rdingly, the Court DENI
C
IES a certific of appea
cate
alability.
The Court DI
T
IRECTS the Clerk to se a certifie copy of th Order to Magistrate J
e
end
ed
his
Judge
VanDerv
vort, counsel of record, and any unre
l
a
epresented pa
arty.
ENTER:
15
September 10, 2013
r
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