Opinion
5:16-CR-60-3FL 5:21-CV-81-FL
06-19-2022
JAMES CURTIS DENTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, United States Magistrate Judge
This matter is before the court on Petitioner's motion to vacate pursuant to 28 U.S.C. § 2255. The Government has moved to dismiss for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6), and Petitioner has responded. This matter has been referred to the undersigned by United States District Judge Louise W. Flanagan for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. Also before the court are Petitioner's motion for extension of time [DE #373], motion to appoint counsel [DE #384], motion to compel [DE #386], and motion for status update [DE #401]. For the reasons stated herein, it is recommended that the Government's motion to dismiss the § 2255 petition be granted and Petitioner's motion to vacate be dismissed. Petitioner's additional motions are dismissed as moot or denied, as explained below.
Petitioner's motion for status update [DE #401] is dismissed as moot based on the issuance of this Order and Memorandum & Recommendation.
BACKGROUND
On August 2, 2016, Petitioner was charged in a second superseding indictment with conspiracy to possess with intent to distribute at least fifty grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 846 (count five); possession of an unregistered explosive device, in violation of 26 U.S.C. §§ 5841, 5861(d), & 5871 (count seven); transportation of an explosive while being an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 842(i)(3) & 844(a)(1) (count eight); and transportation of an explosive with knowledge and intent to kill, injure, or intimidate, in violation of 18 U.S.C. § 844(d) (count nine). (Second Superseding Indictment (“Indictment”) [DE #95].) Petitioner was arraigned and pleaded not guilty to each count on June 13, 2017 [DE #215], and a jury trial began on October 23, 2017 [DE #242]. On October 25, 2017, the jury returned a verdict of guilty as to each count. (Jury Verdict [DE #252].)
The prior charging document history, comprising a criminal complaint and two indictments, is located at DE ##1, 14, & 23.
On June 7, 2018, the court sentenced Petitioner to 360 months' imprisonment on count five and 120 months' imprisonment each on counts seven, eight, and nine, all to be served concurrently. (J. [DE #323].) The court also imposed a five-year term of supervised release on count five and three-year terms of supervised release on counts seven, eight, and nine, all to be served concurrently. (Id.) Petitioner appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed in an opinion published on November 25, 2019. United States v. Denton, 944 F.3d 170 (4th Cir. 2019), cert. denied, 140 S.Ct. 2585 (2020).
Petitioner timely filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on February 16, 2021. (Mot. Vacate [DE #374].) The Government filed a motion to dismiss and supporting memorandum (Mot. Dismiss [DE #381]; Mem. Supp. Mot. Dismiss [DE #382]), to which Petitioner responded in opposition (Resp. Opp'n Mot. Dismiss [DE #388]).
Under 28 U.S.C. § 2255(f)(1), Petitioner had until March 30, 2021, to file a motion to vacate, one year after the Supreme Court denied his petition for a writ of certiorari. See Clay v. United States, 537 U.S. 522, 532 (2003). Petitioner's motion for an extension of time to file his § 2255 petition [DE #373] is dismissed as moot because Petitioner timely filed his motion.
D ISCUSSION
There are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the statutory maximum sentence, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962). Petitioner must establish his § 2255 claims by a preponderance of the evidence. See Loc Huu Bui v. United States, Nos. 5:10-CR-205-FL & 5:13-CV-258-FL, 2014 WL 582954, at *3 (E.D. N.C. Feb. 13, 2014) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam)).
Petitioner identifies five grounds for relief based on ineffective assistance of counsel (IAC). Petitioner alleges trial counsel was ineffective for (1) failing to object to jury instructions regarding the drug conspiracy charge; (2) failing to move to suppress evidence obtained from the search of a cellular telephone seized from Petitioner; (3) failing to object to statements by co-conspirators at trial and failing to cross-examine these witnesses; (4) failing to object to evidence introduced at trial; and (5) general ineffectiveness at trial, deception by trial counsel Jackson regarding his ability to represent Petitioner in a federal jury trial, and incorrect advice from trial counsel Jackson regarding Petitioner's sentencing exposure. (Mot. Vacate at 4-14; Mem. Supp. Mot. Vacate [DE #374-1].)
Petitioner retained J. Frank Jackson early in the case, and Attorney Jackson noticed his appearance on May 16, 2016. (Jackson Notice of Appearance [DE #56].) Attorney Rosemary Godwin was also retained and noticed her appearance on June 23, 2017, shortly after Petitioner was arraigned and pleaded not guilty. (Godwin Notice of Appearance [DE #217].) Both attorneys represented Petitioner at trial.
I. Request for Appointment of Counsel
In connection with the instant § 2255 petition, Petitioner has requested the appointment of counsel. (Mot. Appoint Counsel [DE #384] at 2.) There is no constitutional right to counsel in collateral review proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Under 18 U.S.C. § 3006A(a)(2)(B), a court may appoint counsel in such proceedings if it determines that “the interests of justice so require.” Petitioner's motion presents no issues of great legal complexity. Therefore, the court denies Petitioner's motion for appointment of counsel. See Dunn v. United States, Nos. 5:11-CR-274-FL & 5:13-CV-773-FL, 2018 WL 6686650, at *1 (E.D. N.C. Sept. 18, 2014), mem. & recommendation adopted by 2014 WL 6694060 (E.D. N.C. Nov. 26, 2014).
II. Ineffective Assistance of Counsel Claims
To prevail on an IAC claim, Petitioner must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 678-88 (1984). The reasonableness of counsel's performance must be judged according to the specific facts of the case at the time of counsel's conduct. Id. at 690. There is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance, and the petitioner bears the burden of demonstrating that counsel's assistance was neither reasonable nor the product of sound strategy. Strickland, 466 U.S. at 689. While counsel's “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” id. at 691, a court reviewing an IAC claim will “not regard as tactical a decision by counsel if it made no sense or was unreasonable,” Vinson v. True, 436 F.3d 412, 419 (4th Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 52124 (2003)).
A petitioner also must show he was prejudiced by his attorney's deficient performance. Strickland, 466 U.S. at 692. This requires a petitioner to “show 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. “However, a [petitioner] is not required to establish that ‘counsel's deficient conduct more likely than not altered the outcome of the case,'” only that there is ‘“a probability sufficient to undermine confidence in the outcome' of the trial.” United States v. Rangel, 781 F.3d 736, 742 (4th Cir. 2015) (quoting Strickland, 466 U.S. at 693-94).
A. Collins Error in Jury Instructions
In United States v. Collins, 415 F.3d 304 (4th Cir. 2005), the Fourth Circuit held that “a trial court must ‘instruct a jury to use Pinkerton principles' to determine the quantity of drugs attributable to an individual participant in a drug conspiracy.” Denton, 944 F.3d at 181 (quoting Collins, 415 F.3d at 314). ‘“[I]n order to properly apply the sentencing provisions of § 841(b)(1) in a § 846 drug conspiracy prosecution,' Collins requires the jury to determine beyond a reasonable doubt that the threshold drug quantity specified in § 841(b)(1) was reasonably foreseeable to the defendant.” Denton, 944 F.3d at 182 (quoting United States v. Jeffers, 570 F.3d 557, 569 (4th Cir. 2009)).
On direct appeal, Petitioner argued that the court erred by failing to instruct the jury in accord with Collins. The Fourth Circuit reviewed this issue for plain error, as Petitioner “did not . . . preserve an objection on the Collins issue at trial.” Denton, 944 F.3d at 182. The Fourth Circuit determined the Collins error met the first three requirements of plain error review. Id. In so doing, the Fourth Circuit determined that the failure to instruct the jury as required by Collins was plain error which “affected [Petitioner]'s substantial rights.” Id. (citing United States v. Foster, 507 F.3d 233, 251-52 (4th Cir. 2007)). However, the Fourth Circuit declined “to correct the plain Collins error,” determining that the error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Denton, 944 F.3d at 182. See also Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (explaining the four requirements for relief from plain error) (cited in Denton, 944 F.3d at 185); Greer v. United States, 141 S.Ct. 2090, 2096-97 (2021) (providing similar explanation and characterizing the first three requirements as “threshold requirements”); Foster, 507 F.3d at 249-252 (reviewing a Collins error for plain error and declining to correct the plain Collins error); Jeffers, 570 F.3d at 569-70 (same); United States v. Daniels, 323 Fed.Appx. 201, 212-16 (4th Cir. 2009) (reviewing a Collins error for plain error and exercising discretion to correct the error).
Plain error review and review for IAC is similar in some ways and different in others. The Fourth Circuit explained the difference in United States v. Carthorne, 878 F.3d 458 (4th Cir. 2017):
Given their different origins, the plain error standard and the ineffective assistance standard serve different, yet complementary, purposes. See United States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) (“[T]here is a natural analogy between the assertion of ‘plain error' and the assertion of ineffective assistance of counsel.”). Plain error review by appellate courts is used “to correct only particularly egregious errors” by a trial court. United States v. Dowell, 388 F.3d 254, 256 (7th Cir. 2004) (citation omitted). By comparison, the ineffective assistance inquiry on collateral review does not involve the correction of an error by the district court, but focuses more broadly on the duty of counsel to raise critical issues for that court's consideration.
Although both the plain error standard and the ineffective assistance of counsel standard require a showing of prejudice, the inquiries are not identical. See Saro, 24 F.3d at 287. ....
. . . [E]ven when a district court has not committed plain error, counsel can have rendered ineffective assistance when counsel's errors “were the result of a misunderstanding of the law.” United States v. Span, 75 F.3d 1383, 1389-90 (9th Cir. 1996) (holding that counsel's failure to raise an objection to jury instructions was ineffective assistance, even though district court's instructions were not plainly erroneous). Conversely, a finding of plain error does not always entail a finding of ineffective assistance of counsel. See Gordon v. United States, 518 F.3d 1291, 1300 (11th Cir. 2008) (holding that “strategic” reasons justified counsel's failure to object to a plain error and, therefore, counsel's performance was not ineffective). Thus, the plain error and ineffective assistance of counsel standards do not necessarily generate identical outcomes with respect to the same alleged error.Carthorne, 878 F.3d at 465-66 (footnote omitted). See also Rangel, 781 F.3d at 745 46 (explaining similarity between Strickland prejudice and plain error inquiry into whether substantial rights were affected).
Petitioner's motion to vacate presents the situation where an IAC claim in a § 2255 motion is premised on counsel's failure to object to plain error in jury instructions that the appellate court declined to correct. For the reasons explained below, the undersigned determines that Petitioner has not made the requisite showings under Strickland to demonstrate IAC regarding the Collins error.
First, this is not a situation, like Collins, where the court failed to require the jury to determine the quantity of drugs attributable to the defendant. See Collins, 415 F.3d at 313-14 (recognizing that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that the jury determine the amount of drugs attributable to each conspirator based upon his own conduct or the conduct of coconspirators that was both reasonably foreseeable to him and taken in furtherance of the conspiracy). Here, “[t]he district court instructed the jury that, if it found [Petitioner] guilty of the drug conspiracy offense, it was obliged ‘to determine the quantity of methamphetamine that [Petitioner] conspired to distribute and/or possess with the intent to distribute.”' Denton, 944 F.3d at 181 (quoting J.A. 699); (see also Oct. 25, 2017, Trial Tr. [DE #313] at 244). This phrasing seems to require that the jury determine the drug quantity based solely on the conduct of Petitioner, without regard to the reasonably foreseeable conduct of his coconspirators. While erroneous, the instruction appears to have benefitted Petitioner as it would have precluded the jury from attributing any drug quantity to Petitioner based upon the conduct of his coconspirators. Accordingly, it cannot be said that counsel's failure to object to the erroneous instruction was not strategic. See Gordon, 518 F.3d at 1300 (“Counsel may decide, for strategic reasons, not to object to an obvious error.”). Petitioner has therefore failed to demonstrate that counsel's performance was deficient.
Moreover, the Fourth Circuit held that the overwhelming and uncontroverted “trial evidence . . . established that at least fifty grams of methamphetamine were attributable to Denton, based on his substantial role in the drug conspiracy.” Denton, 944 F.3d at 182-83. This forecloses Petitioner's attempt to show that he was prejudiced by his attorneys' failure to object to the Collins error. Because there was overwhelming evidence that at least fifty grams of methamphetamine were attributable to Petitioner as a result of his own conduct, there is no reasonable probability that the result of the proceeding would have been different - that the jury would have attributed less than fifty grams of methamphetamine to Petitioner if instructed to also consider reasonably foreseeable conduct of his coconspirators in determining the drug quantity attributable to Petitioner. Thus, Petitioner's IAC claim based on the Collins error also fails because he cannot meet the prejudice requirement under Strickland.
B. Failure to Move to Suppress Evidence from Cell Phone
Petitioner contends trial counsel provided IAC by failing to move to suppress evidence obtained from a warrant-based search of a cellular telephone seized from Petitioner on May 29, 2015. (Mot. Vacate at 7-9.) This claim should be dismissed.
An IAC claim based on counsel's failure to file a suppression motion requires a court to “apply a ‘refined' version of the Strickland analysis.” United States v. Pressley, 990 F.3d 383, 388 (4th Cir. 2021). The performance inquiry asks “whether the ‘unfiled motion would have had ‘some substance,'” and if so, “whether strategic reasons warranted not filing the motion.” Id. (first quoting Grueninger v. Dir., Va. Dep't of Corr., 813 F.3d 517, 524-25 (4th Cir. 2016); then citing Grueninger, 813 F.3d at 529; and then citing Tice v. Johnson, 647 F.3d 87, 104-05 (4th Cir. 2011)). The prejudice inquiry requires that a petitioner show “(1) ‘the [suppression] motion was meritorious and likely would have been granted, and (2) a reasonable probability that granting the motion would have affected the outcome of his trial.'” Pressley, 990 F.3d at 388 (alteration in original) (quoting Grueninger, 813 F.3d at 525).
Petitioner claims there was no probable cause for a search warrant for the cell phone and that the phone was the property of Petitioner's brother, who did not consent to a search of the phone. (Mot. Vacate at 7-9.) Petitioner questions whether probable cause existed to issue a search warrant for the cell phone to locate evidence of drug trafficking activity. Petitioner states that at the time of the search and seizure he had only been arrested for violating a domestic violence protective order and law enforcement lacked reliable information Petitioner was involved in drug trafficking. (Id.; Resp. Opp'n Mot. Dismiss at 16); see also Denton, 944 F.3d at 175 (noting that the domestic violence protective order prohibited Petitioner from contacting [his former wife] “in person, by phone, or by email”; Petitioner violated the protective order in early May 2015 by calling his [former wife] from an unknown telephone number; and a cell phone was located on Petitioner's person when he was arrested on May 29, 2015).
Petitioner's IAC claim as to the suppression motion lacks “some substance” for two reasons. First, based on the facts that the protective order prohibited Petitioner from contacting his former wife via telephone, he contacted her in early May 2015 from an unknown number, and he was found in possession of a phone on the date of his arrest, there would be probable cause to believe that evidence of Petitioner's violation of the protective order would be located on that phone, namely, information indicating that Petitioner called his former wife. “Facts establishing probable cause need only warrant a man of reasonable caution to believe that evidence of a crime will be found and do not require a showing that such a belief be correct or more likely true than false.” United States v. Davis, 939 F.Supp.2d 535, 560 (E.D. N.C. 2013) (internal quotation marks omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)); see also United States v. Gondres-Medrano, 3 F.4th 708, 714 (4th Cir. 2021) (“Probable cause has long been understood to encompass circumstances that, while less than a preponderance, ‘warrant suspicion.'” (quoting Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813))). “Probable cause is therefore “not a high bar.” United States v. Bosyk, 933 F.3d 319, 325 (4th Cir. 2019) (quoting District of Columbia v. Wesley, 138 S.Ct. 577, 586 (2018). Second, based on Petitioner's own statement in his motion that the cell phone belonged to his brother (Mot. Vacate at 9), he lacked a reasonable expectation of privacy in the contents of that cell phone, which is a prerequisite to challenging the cell phone search via a suppression motion. See United States v. Gray, 491 F.3d 138, 144 (4th Cir. 2007) (citing Rawlings v. Kentucky, 448 U.S. 98, 104 (1980)) (defendant seeking to suppress evidence must show that he had a reasonable expectation of privacy in the area searched). Accordingly, Petitioner has failed to carry his burden to show that trial counsel was ineffective for failing to file a suppression motion regarding the cell phone seized from Petitioner on May 29, 2015. See Pressley, 990 F.3d at 388.
C. Failure to Object to Witness Testimony and Cross-Examine Witnesses
Petitioner contends trial counsel was ineffective for failing to object to trial testimony and for failing to cross-examine “any of the witnesses at trial.” (Mot. Vacate at 11.) This claim is contradicted by the record. (Oct. 23, 2017, Trial Tr. [DE #311] at 43 (Kristina Keith), 61-62 (Curtis Farmer), 66 (David Riggs), 127 (Kristi Hicks); Oct. 24, 2017, Trial Tr. [DE #312] at 107-09 (Tyler Dahlke), 114-16 (Veronica Hart), 13233 (Jyles Coggins, II), 187-88 (Melissa Goodwin); Oct. 25, 2017, Trial Tr. [DE #313] at 16-25 (Craig Williams), 39-55 (Marcus Williams), 103-127 (Angela Trogdon), 147 (William Bridgers), 151-52 (Jefferson Lomick), 160-65 (Jim Young).) This claim should therefore be dismissed. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992) (unsupported, conclusory allegations are not sufficient to warrant relief on collateral review), overruled on other grounds by Gray v. Netherland, 518 U.S. 152, 165-66 (1996).
D. Failure to Object to Rule 404(b) Evidence
Petitioner contends trial counsel was ineffective for failing to object to evidence admitted pursuant to Fed.R.Evid. 404(b), commonly known as “bad acts” evidence. (Mot. Vacate at 12.) Petitioner specifically states trial counsel should have objected to evidence regarding a prior threat and assault. (Id.) Distinct from the 404(b) IAC claim, Petitioner also contends trial counsel was ineffective for failing to object to testimony from a law enforcement investigator regarding social media records on the grounds that the investigator lacked personal knowledge and gave improper expert opinion testimony. (Id.)
The Fourth Circuit analyzed both of these issues under plain error review and, unlike the Collins issue discussed above, determined that no plain error occurred. Denton, 944 F.3d at 185 (analysis of investigator's testimony and determination that Petitioner's substantial rights were unaffected); 185-86 (determination that no plain error occurred regarding admission of 404(b) evidence and explaining that “Denton's treatment of Baker was part of his pattern of threatening and violent conduct towards the men that his ex-wife Hicks dated and thus provided context to the explosive offenses”). Effectively, any objection to the 404(b) evidence or to the investigator's testimony would have been meritless for the reasons explained by the Fourth Circuit.
Therefore, Petitioner has failed to carry his burden to show IAC in these respects. See Baum v. United States, Nos. 2:13-CR-2-1FL & 2:16-CV-12-FL, 2017 WL 3027092, at *3 (E.D. N.C. July 17, 2017) (“Failure to lodge a meritless objection does not amount to ineffective assistance.”) (first citing United States v. Kilmer, 167 F.3d 889, 893 (5th Cir. 1999); and then citing Moore v. United States, 934 F.Supp. 724, 731 (E.D. Va. 1996)); United States v. Anthony, 149 Fed.Appx. 135, 136 (4th Cir. 2005) (same) (citing Strickland, 466 U.S. at 687-95).
E. Incorrect Advice Regarding Penalty Exposure
Petitioner contends trial counsel incorrectly advised him about the maximum penalties he would face if convicted at trial. (Mot. Vacate at 13-14.) Petitioner's sworn statements at his arraignment obviate this claim.
“Absent clear and convincing evidence to the contrary, [a petitioner] is bound by the representations he made during the plea colloquy.” Beck v. Angelone, 261 F.3d 377, 396 (4th Cir. 2001) (internal quotation marks omitted); see also United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (holding that “allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always palpably incredible and patently frivolous or false” and that the truth of sworn statements during a Rule 11 colloquy is “conclusively established” unless there are “extraordinary circumstances” (internal quotation marks omitted)). The court can correct any misinformation provided by counsel during a properly conducted Fed. R. Crim. P. 11 hearing. United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995) (“[E]ven if [the defendant's] trial counsel provided [the defendant] incorrect information about sentencing, [the defendant] was in no way prejudiced by such information given the trial court's careful explanation of the potential severity of the sentence.”).
Here, Petitioner was placed under oath and affirmed that (1) he had received a copy of the charges against him, discussed those charges with his attorney, and understood the charges; (2) he was satisfied with trial attorney Jackson's advice and counsel; and (3) he understood the maximum possible punishment he could receive if convicted of each charge, after the Government read aloud the punishment for each charge. (Arraignment Tr. [DE #335] at 11-17.) Petitioner then pleaded not guilty to each charge. (Id. at 17.) Any misinformation provided by Petitioner's counsel was thus corrected at his arraignment, and Petitioner has identified no extraordinary circumstance that would call into question the truth of his statements made under oath. Therefore, this IAC claim should be dismissed. See Beck, 261 F.3d at 396; Lemaster, 403 F.3d at 221; Foster, 68 F.3d at 88.
F. General Claim about Deceptive and Deficient Attorney Performance
Petitioner also contends Attorney Jackson misled Petitioner in regards to Attorney Jackson's ability to represent Petitioner in a federal jury trial, leaving Petitioner unassisted throughout the trial. (Mot. Vacate at 13-14.) Such general accusations about attorney performance are not cognizable in a § 2255 motion. To whatever extent Petitioner premises an IAC claim based on these general statements, it should be dismissed. See Nickerson, 971 F.2d at 1136.
III. Motion to Compel
Petitioner moves to compel (i) the production of his case file from trial attorney Jackson and (ii) the production “documents, affidavits, search warrants, [and] NPlex records” from the Government. (Mot. Compel [DE #386].)
“Pursuant to Rule 6(a) of the Rules Governing § 2255 Proceedings, a prisoner may engage in discovery only ‘if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants him leave to do so, but not otherwise.'” United States v. Roane, 378 F.3d 382, 402 (4th Cir. 2004) (standard for good cause set by Harris v. Nelson, 394 U.S. 286 (1969), and Bracy v. Gramley, 520 U.S. 899 (1997)); see also Bove v. United States, Nos. 3:11-CR-104-RJC-DSC-1 & 3:15-CV-204-RJC, 2017 WL 3402969, at *6 (W.D. N.C. Aug. 8, 2017) (summarizing standard for right to discovery in § 2255 proceedings). “Good cause for discovery is found ‘where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.'” Bove, 2017 WL 3402969, at *6 (quoting Bracy, 520 U.S. at 908-09). The petitioner must “point to specific factual allegations when making his request.” Id. (citing United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990)).
The court denies Petitioner's motion to compel for several reasons. First, Petitioner is free to obtain his case file from Attorney Jackson without seeking court intervention. That is a matter between Petitioner and Attorney Jackson. Second, Petitioner's request is overbroad. See Wilson, 901 F.2d at 381. Third, assuming that the request for law enforcement agency records is related to Petitioner's claim that his trial attorney was ineffective for failing to move to suppress evidence obtained from a warrant-based search of Petitioner's cell phone, Petitioner has not demonstrated that the requested records would show he is entitled to relief for the reasons explained above. See Bracy, 520 U.S. at 908-09.
C ONCLUSION
For the foregoing reasons, it is ORDERED as follows:
1. Petitioner's motion for extension of time [DE #373] is DISMISSED AS MOOT;
2. Petitioner's motion for status update [DE #401] is DISMISSED AS MOOT;
3. Petitioner's motion to appoint counsel [DE #384] is DENIED; and
4. Petitioner's motion to compel [DE #386] is DENIED.
It is further RECOMMENDED that the Government's motion to dismiss [DE #381] be GRANTED and Petitioner's motion to vacate [DE #374] be DISMISSED for failure to state a claim upon which relief can be granted.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties. Each party shall have until July 8, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. (Dec. 2019).
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).