Woodson v. United States of America
Filing
102
MEMORANDUM OPINION AND ORDER as to Norvel Lee Woodson: that the 96 Proposed Findings and Recommendations (in case number 5:12-cv-2529) be Adopted; that Petitioner's 97 Objections be Overruled and that the Petitioner's 86 Motion Under 28 USC 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody be Dismissed with Prejudice; that the 99 Standing Order entered 5/22/2014 in Case No. 5:14-16725, designating Magistrate Judge Tinsley to submit proposed findings o f fact and recommendation is Vacated; that the 98 Petition titled Movant due to His Compliance With and His Satisfaction of the "Cause and Prejudice" Standard He Submits This 28 USC 2255 in Want of Relief be Dismissed with Prejudice; the Court denied a certificate of appealability. Signed by Judge Irene C. Berger on 7/22/2014. (cc: Judge, Mag. Judge VanDervort, Mag. Judge Tinsley, counsel,any unrepresented party) (cds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
NORVELL WOODSON,
Petitioner,
v.
CIVIL ACTION NO. 5:12-cv-02529
5:14-cv-16725
(Criminal No. 5:09-cr-00191)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Petitioner=s motion pursuant to 28 U.S.C. ' 2255 filed on July
3, 2012, to vacate, set aside or correct sentence (Document 86, Case No. 5:12-cv-2529), brought
on the grounds, inter alia, that his counsel was ineffective, rendering his plea involuntary.
By Standing Order (Document 89) entered on July 3, 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
April 18, 2014, Magistrate Judge VanDervort submitted a Proposed Findings and
Recommendation (PF&R) (Document 96), wherein it is recommended that this Court deny the
Petitioner=s ' 2555 motion and remove the action from the docket. Mr. Woodson timely filed his
Objection to Magistrate Judge’s Proposed Finding and Recommendation (Document 97) on May
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2, 2014. Following careful consideration, the Court finds that Magistrate Judge VanDervort’s
PF&R should be adopted and the Petitioner’s objections should be overruled.
The Court has additionally reviewed a subsequent § 2255 motion (Document 98, Case No.
5:14-cv-16725) filed by the Petitioner on May 19, 2014, in which he asserts that his counsel was
ineffective in failing to object to the Court’s withholding of acceptance of the plea agreement until
review of the Presentence Investigation Report. This action was referred to the Honorable Dwane
L. Tinsley, United States Magistrate Judge, for submission to this Court of proposed findings of
fact and recommendation for disposition, by Standing Order (Document 99) entered on May 22,
2014. In the interests of efficiency, this Court finds it appropriate to withdraw the reference and
consider all of the Petitioner’s claims herein. Following careful consideration, the Court finds
that the subsequent § 2255 must be dismissed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Magistrate Judge VanDervort set forth the factual allegations and procedural history of this
matter in detail. The Court now incorporates by reference those facts and procedural history.
However, to provide context for the ruling herein, the Court provides the following summary.
Mr. Woodson pled guilty to one count of distribution of cocaine on March 30, 2010. He
was sentenced to one hundred fifty-one (151) months of incarceration, which was the bottom of
the applicable guideline range, based on his status as a career offender pursuant to Section
4B1.1(a) of the United States Sentencing Guidelines (Guidelines). Mr. Woodson’s attorney, J.
Steven Hunter, was under the mistaken impression that acceptance of the United States’ plea offer
would preclude application of the career offender enhancement under the Guidelines. (See Def.’s
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Sentencing Memorandum, Case No. 5:09-cr-191, Document 55 (“Counsel acknowledges that the
career offender status was discussed with the defendant prior to his plea herein, however, based on
the offer from the United States Attorney to withhold the filing of an information, counsel felt that
the career offender enhancement had been taken off the table.”) The plea offer included an
agreement not to file an Information pursuant to 21 U.S.C. § 851, which would have increased the
potential statutory minimum and maximum sentences.
Mr. Woodson’s offense involved
relatively small drug quantities, and the career offender enhancement increased his Guideline
sentencing range dramatically.
Mr. Woodson asserts that his attorney failed to advise him that he could receive a career
offender enhancement under the Guidelines during their discussions regarding the plea offer.
After receipt of the Presentence Investigation Report, recommending the enhancement, prior to
sentencing, Mr. Hunter did not “advise the Petitioner that it would be appropriate to file a Motion
to withdraw the guilty plea.” (Memorandum in Support of Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence By a Person in Federal Custody Under 28 U.S.C. § 2255, at 5,
Document 87.) Following sentencing, the Court ordered that new counsel be appointed to
represent Mr. Woodson on appeal in anticipation of a potential claim for ineffective assistance of
counsel. Because no motion to withdraw the guilty plea was filed, the validity of the guilty plea
was reviewed for plain error on direct appeal. The Fourth Circuit Court of Appeals found that the
Court properly informed Mr. Woodson of the potential statutory maximum punishment of twenty
(20) years of incarceration. Thus, any erroneous information from his counsel regarding his
potential sentence was of no consequence, and he could not demonstrate that he was prejudiced by
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any purported failures by his counsel. (United States v. Woodson, No. 10-4989, at p. 3–5, April
11, 2011, Case No. 5:09-cr-191, Document 76.)
In his PF&R, Magistrate Judge VanDervort found that the Fourth Circuit’s ruling
precluded Mr. Woodson’s claim for ineffective assistance of counsel. (PF&R at 4–5) (“Petitioner
is clearly seeking to revisit the same issues that were rejected on appeal.”) He went on to explain
that recent Supreme Court cases finding a duty by counsel to effectively advise defendants during
the plea bargaining phase “do not constitute an intervening change in law that justifies
consideration of a prior determination.” (Id. at 6) (citing Harris v. Smith, 2013 WL 6645584 (4th
Cir., Dec. 18, 2013), which held that the Supreme Court cases “did not announce a new rule of
constitutional law.”) Magistrate Judge VanDervort further noted that an older case, Hill v.
Lockhart, 474 U.S. 52 (1985), governs the factual scenario before the Court. Lockhart involved a
claim that poor advice led to acceptance of a plea agreement that a defendant would otherwise
have rejected, whereas the newer precedent involved rejections of beneficial plea agreements.
Lockhart, 474 U.S. 52. Thus, he found Mr. Woodson’s claim to be “procedurally barred because
he is seeking to revisit the same issues that were rejected on appeal without directing the Court to
any intervening change in law which authorizes him to do so.” (PF&R at 7.)
Mr. Woodson objects, arguing that a habeas proceeding is the preferred forum for raising
ineffective assistance of counsel claims. Further, he stresses that “the intermingled claims of an
involuntary plea based on ineffective assistance raised by appellate counsel cause[d] the Court of
Appeals to review the ineffective assistance of counsel claim under the prejudicially harsh
standard of plain error.” (Obj. at 2.) He urges the Court, in construing his claims liberally, to
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recognize “a claim of ineffective assistance of appellate counsel for raising an IAC claim on direct
appeal without a fully devolved (sic) factual record.” (Id. at 4.)
In his subsequent § 2255 motion, filed just over two weeks after his objections, Mr.
Woodson asserts an additional ground for his ineffective assistance of counsel claim. He states
that “[t]he trial Court, without consent of Movant, as is required by Rule 32(c)(1),1 did “defer” its
acceptance of the plea, until after it [the Court] had read Movant’s presentence report. This was a
grave constitutional error committed by the Court and Counsel was most ineffective” in failing to
challenge it. (Second Mot. at 5.)
II.
MOTION PURSUANT TO 28 U.S.C. § 2255
FILED IN CASE NO. 5:12-CV-2529
A. Standard of Review
This 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).
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 “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). When reviewing
portions of the PF&R de novo, the Court will consider the fact that Petitioner is acting pro se, and
1 Though the Petitioner cites Rule 32(c)(1), his argument appears to rest on Rule 32(e)(1).
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his pleadings will be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
B. Discussion
Mr. Woodson does not contest the Magistrate Judge’s finding that no intervening change in
the law supports his claim. (See generally, Obj.) Instead, he argues that Fourth Circuit case law
establishes a preference for adjudication of claims of ineffective assistance of counsel in habeas
proceedings pursuant to 28 U.S.C. § 2255, rather than on direct appeal. (Id. at 2.) He attempts to
separate his involuntary plea claim from his claim that Mr. Hunter was ineffective for failing to
properly investigate the application of the career offender provision in the Guidelines. (Id. at 3.)
He asserts that his appellate counsel was also ineffective for raising his ineffective assistance claim
on direct appeal, when (a) the factual record was less developed and (b) the Fourth Circuit would
apply plain error review because no challenge to the guilty plea was made during the initial
proceeding. (Id. at 2–4.)
The Court finds that Magistrate Judge VanDervort correctly found the Petitioner’s claims
to be procedurally barred because they were raised and addressed in full on direct appeal. Then,
as now, the essence of the claim is that Mr. Hunter’s false belief, passed on to his client, that a
provision in the plea offer precluding the Government from filing an Information pursuant to 21
U.S.C. § 851 would also prevent the Court from applying the career offender provision pursuant to
§ 4B1.1 of the Guidelines. Mr. Hunter admitted prior to sentencing that he was mistaken with
respect to the impact of the plea on the Guidelines. The Fourth Circuit held that Mr. Woodson’s
plea was not involuntary because the Court independently informed him of the statutory potential
punishment, negating any potential prejudice arising from the error. Mr. Woodson has presented
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no new facts that give rise to an ineffective assistance of counsel claim. This is not a case in
which an attorney’s strategy and motives are unclear or contested. Additional details regarding
Mr. Hunter’s representation are unlikely to shed further light. It was clear during the direct appeal
that he misunderstood the impact of the plea agreement, and, by implication, that any estimated
Guideline range shared with Mr. Woodson prior to acceptance of the plea was incorrect.
Mr. Woodson’s reliance on Massaro v. United States and related cases is misplaced. The
Supreme Court held in Massaro that “an ineffective-assistance-of-counsel claim may be brought
in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim
on direct appeal.” 538 U.S. 500, 504-05 (2003). Massaro does not, however, give defendants
the opportunity to raise a claim on direct appeal in those cases where the facts are sufficiently
developed, then bring the same unsuccessful claim back to the district court in a collateral attack.
Mr. Woodson’s attempt to treat his claim, that his trial counsel did not properly investigate
his potential Guideline range and sentence, as separate from his involuntary plea claim is likewise
unavailing. A claim of ineffective assistance of counsel rests on two prongs: the deficiency of
counsel’s performance, and the prejudicial result of that deficiency. Strickland v. Washington,
466 U.S. 668, 687 (1984). Prejudice requires a showing that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. In the context of a challenged guilty plea, “the defendant must show that
there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Thus, the
involuntary plea claim is necessarily intertwined with the alleged ineffectiveness of his counsel.
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Mr. Woodson cannot demonstrate that his sentencing would have been different absent his
attorney’s error. Importantly, Mr. Hunter’s mistake did not deprive Mr. Woodson or the Court of
information or legal arguments to support a lower sentence. Mr. Hunter simply provided Mr.
Woodson with inaccurate information with respect to his potential advisory Guideline range.
Had he been given accurate information by his counsel relative to his career offender status and
had he been convicted after a trial, the Court would have received a very similar Presentence
Investigation Report with the same prior offenses establishing the applicability of the career
offender provision.
Mr. Hunter could do nothing to alter Mr. Woodson’s prior record.
Accordingly, Mr. Woodson’s petition presents the same question considered by the Fourth Circuit
on direct appeal: whether the misinformation from his counsel led him to accept a plea agreement
he would otherwise have rejected. Thus, as found by Magistrate Judge VanDervort, further
re-consideration by this Court is procedurally barred. See, e.g., Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976). The Petitioner’s Objections to the Magistrate Judge’s
PF&R must be OVERRULED.
III.
MOTION PURSUANT TO 28 U.S.C. § 2255
FILED IN CASE NO. 5:14-CV-16725
Courts are to give § 2255 motions preliminary review pursuant to Rule 4(b) of the Rules
Governing Section 2255 Proceedings for the United States District Court. That rule provides: “If
it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party,” without ordering a response from the United States. Rule 4(b); United
States v. Hill, 861 F.2d 266 (4th Cir. 1988).
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Under 28 U.S.C. § 2255, “A second or successive motion under § 2255 must be denied
unless certified ‘by a panel of the appropriate court of appeals to contain—(1) newly discovered
evidence ...; or (2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.’” United States v. Poole, 531 F.3d 263,
266, n. 4 (4th Cir. 2008) (quoting § 2255(h)). Mr. Woodson argues in his second § 2255 motion
that he has shown “cause and prejudice,” entitling him to overcome the procedural bars regarding
timeliness and presentation of issues not raised on direct appeal. He does not address the bar on
second or successive motions.
The motion brought in case 5:14-cv-16725 is likely procedurally barred.
Even if
construed as an amendment to his previous motion or otherwise admitted and reviewed on its
merits, it must be dismissed pursuant to Rule 4(b). His motion is premised on a misreading of
Rule 32(e)(1) of the Federal Rules of Criminal Procedure, which provides: “Unless the defendant
has consented in writing, the probation officer must not submit a presentence report to the court or
disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has
been found guilty.” Mr. Woodson contends that the Court erred in waiting to review the
Presentence Investigation Report before accepting the parties’ plea agreement, and that his
counsel’s failure to challenge that error was ineffective.
Rule 32(e)(1) is designed to prevent the Court from reviewing inadmissible evidence
contained in a Presentence Investigation Report prior to the defendant’s guilty plea or conviction.
See Gregg v. United States, 394 U.S. 489, 492 (1969) (considering a prior version of the rule)(“To
permit the ex parte introduction of this sort of material to the judge who will pronounce the
defendant's guilt or innocence or who will preside over a jury trial would seriously contravene the
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rule's purpose of preventing possible prejudice from premature submission of the presentence
report.”) Mr. Woodson pled guilty on March 30, 2010. (Documents 45–48, Criminal Action
No. 5:09-cr-191.) At his plea hearing, the Court accepted his guilty plea and adjudged him guilty,
but withheld acceptance of the plea agreement pending review of the Presentence Investigation
Report, to be submitted to the Court by July 12, 2010. (Order, Document 46.)
Rule 11(c)(3) of the Federal Rules of Criminal Procedure provides that, presented with a
plea agreement in which the government agrees to refrain from bringing or dismiss other charges,
“the court may accept the agreement, reject it, or defer a decision until the court has reviewed the
presentence report.” Fed. R. Crim. P. 11(c)(3); accord United States v. Ewing, 957 F.2d 115, 119
(4th Cir. 1992) (finding that a district court did not abuse its discretion in accepting a guilty plea
and later approving the plea agreement). The Guidelines provide language parallel to Rule 11, as
well as policy statements “intended to ensure that plea negotiation practices (1) promote the
statutory purposes of sentencing prescribed in 18 U.S.C. § 3553(a); and (2) do not perpetuate
unwarranted sentencing disparity.” U.S.S.G. § 6B1.1. Plea agreements that include dismissal of
charges and/or agreement not to pursue potential charges require a determination by the court that
the agreement “adequately reflect[s] the seriousness of the actual offense behavior and that
accepting the agreement will not undermine the statutory purposes of sentencing or the sentencing
guidelines.” Id. at § 6B1.2(a).
In accordance with the Federal Rules of Criminal Procedure and the Guidelines, courts
may properly withhold acceptance of a plea agreement pending review of the Presentence
Investigation Report. Rule 32(e)(1) has no applicability to a defendant, like Mr. Woodson, who
has pled guilty.
Thus, Mr. Woodson’s motion pursuant to § 2255 brought in Case No.
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5:14-cv-16725 must be DISMISSED in accordance with Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District Court.
CONCLUSION
Wherefore, based on the findings herein, the Court does hereby ORDER that Magistrate
Judge VanDervort’s Proposed Findings and Recommendation (Document 96, Case Number
5:12-cv-2529) dismissing Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody be ADOPTED, that Petitioner’s Objections to
the PF&R (Document 97) be OVERRULED, and that the Petitioner’s Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Document 86) be
DISMISSED WITH PREJUDICE.
For reasons appearing to the Court, it is further ORDERED that the Standing Order
(Document 99) entered on May 22, 2014, in Case No. 5:14-cv-16725, designating Magistrate
Judge Dwane L. Tinsley to submit proposed findings of fact and recommendation, is hereby
VACATED. Following careful consideration, for the reasons stated herein, the Court ORDERS
that the Petition, titled Movant Due to His Compliance With and His Satisfaction of the “Cause
and Prejudice” Standard He Submits This 28 U.S.C. § 2255 in Want of Relief (Document 98) be
DISMISSED WITH PREJUDICE.
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
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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. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001). The Court concludes that the governing standard is not
satisfied in this instance. Accordingly, the Court DENIES a certificate of appealability.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, to Magistrate Judge Tinsley, to counsel of record, and to any unrepresented party.
ENTER:
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July 22, 2014
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