Love v. United States of America, No. 2:2008cv00192 - Document 673 (S.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION & ORDER adopting the 666 Proposed Findings and Recommendation of the Magistrate Judge; denying petitioner's pending 538 , 564 , 592 , 637 , 642 , 652 , and 660 Motions; denying a certificate of appealability. Signed by Judge Joseph R. Goodwin on 12/16/2009. (cc: attys; any unrepresented parties) (mkw)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION TAWAYNE DEVONE LOVE, Petitioner, v. CIVIL ACTION NO. 2:08-cv-00192 (Criminal No. 2:03-cr-00187-01) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION & ORDER Pending before the court are several motions from the petitioner: a Petition to Vacate, Set Aside, or Correct Sentence [Docket 564]; an Amended Motion to Dismiss [Docket 538]; a Motion to Vacate, Set Aside, or Correct Sentence [Docket 592]; a Motion for Summary Judgment [Docket 637]; a Motion for Hearing [Docket 642]; a Motion for Sanctions [Docket 652]; and a Motion to Alter and/or Amend the Original Petition [Docket 660]. This matter was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation ( PF&R ) for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and recommended that the court deny the petitioner s Amended Motion to Dismiss [Docket 538]; Petition [Docket 564]; Section 2255 Motion [Docket 592]; Motion for Summary Judgment [Docket 637]; Motion for Evidentiary Hearing [Docket 642]; Motion for Sanctions [Docket 652] and Motion to Alter and/or Amend the Petition [Docket 660], and dismiss this matter from the docket. The petitioner timely filed written objections to the Magistrate Judge s findings of fact and recommendation. Having reviewed the petitioner s objections de novo, the court FINDS that they ultimately are without merit. The court agrees with and adopts the thorough analysis of the Magistrate Judge. The court DENIES the petitioner s pending motions [Dockets 538, 564, 592, 637, 642, 652, and 660]. The petitioner s argument that the United States breached its plea agreement merits some discussion. The petitioner claims that the United States breached its promise to make no recommendation, as to a specific sentence, (Plea Agreement [Docket 2067] ¶ 9) when Assistant United States Attorney File stated at the sentencing hearing: . . . [W]ith regard to sentencing . . . it s our view that a sentence within the guideline range, although extremely high, is appropriate under the circumstances and would be a reasonable sentence given this defendant s prior conduct and the circumstances of the offense. (Tr. Sentencing Hr g [Docket 454] at 54.) The petitioner argues that the United States violated the plea agreement by making this statement. (Pet. at 84 [Docket 564].) He directs the court s attention to the tenth paragraph of the plea agreement, which states: If either the United States or Mr. Love violates the terms of this agreement, the other party will have the right to void this agreement. (Plea Agreement ¶ 10.) The petitioner argues that he has the right to void the agreement, and requests a retrial. (Pet. at 84.) The Magistrate Judge concluded that [i]t is plain that AUSA File did not any recommendation as to a specific sentence. . . . By merely stating that the applicable guideline range was reasonable, Mr. File complied with the plea agreement. (PF&R [Docket 666] at 23-24.) The petitioner objects, arguing that a recommendation of a sentence within the guideline range is specific so as to violate -2- the plea agreement as it would be reasonably understood by a defendant. (Objections to PF&R [Docket 672] at 6-7.) Before United States v. Booker, 543 U.S. 220 (2005), and its progeny were decided, the federal sentencing guidelines were mandatory. If the United States had recommended sentencing within the guideline range before Booker was decided, such a recommendation would not be a specific sentence at all, because such a recommendation, even if followed, would not narrow the sentencing judge s discretion in this matter. But now that the sentencing guidelines are discretionary, a recommendation of a sentence within the guideline range does provide some specificity in sentencing. Nevertheless, I find that Mr. File s recommendation was not specific enough to violate the plea agreement. See, e.g., United States v. Moore, 931 F.2d 245, 250 (4th Cir. 1991) (noting that the defendant did not have a reasonable basis to believe that the prosecutor s promise to refrain from recommending a specific sentence protected him from remarks calculated to induce the Court to issue a severe prison term ); United States v. Cook, 170 F.Supp.2d 653, 656-58 (S. D. W. Va. 2001) (concluding that the government s advocacy for an upward departure did not breach its agreement to make no recommendation . . . as to a specific sentence ); Cook, 170 F.Supp.2d at 656 n.2 (noting the need to give meaning to the word specific in the plea agreement). I also note that the sentence imposed, a term of incarceration of 300 months, to run consecutively with an additional 60 months, was below the guideline minimum of 360 months incarceration, followed by a mandatory consecutive terms of 60 months. 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 a substantial showing of the denial -3- 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 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 Clerk is DIRECTED to forward copies of this written opinion and order to all counsel of record and any unrepresented parties. ENTER: -4- December 16, 2009

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