United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
Robert Ford, filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket 1. The
government now moves to dismiss the petition for failure to
state a claim. Docket 22. The matter was assigned to United
States Magistrate Judge Veronica L. Duffy under 28 U.S.C.
§ 636(b)(1)(B) and this court's October 16, 2014
standing order. Magistrate Judge Duffy recommends that the
petition be dismissed. Docket 28. Ford timely filed his
objection. Docket 32. For the following reasons, the court
adopts Magistrate Judge Duffy's report and recommendation
and dismisses Ford's petition.
was charged with sexual abuse of an incapacitated person and
kidnapping. United States v. Ford, 726 F.3d 1028,
1029 (8th Cir. 2013). After a jury trial, he was acquitted of
sexual abuse but convicted of kidnapping. The Eighth Circuit
Court of Appeals affirmed his conviction. Id.
October 1, 2015, Ford filed a motion to vacate or set aside
his conviction under 28 U.S.C. § 2255. Docket 1. Ford
argued that his trial attorney had provided ineffective
assistance by not presenting evidence at trial to attack the
credibility of Christine Weston, the victim and a witness.
Docket 5. The government moved to dismiss the petition,
arguing that Ford's attorney had not been ineffective
because the evidence was inadmissible and that Ford could not
show prejudice. Docket 22. On August 18, 2016, Magistrate
Judge Duffy filed her report and recommendation, recommending
that the government's motion be granted and the petition
be dismissed. Docket 28. Ford objects to this recommendation.
Docket 32. He seeks de novo review of this recommendation.
court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
court may then “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
The Report and Recommendation
After de novo review, the court finds that Ford has failed to
show ineffective assistance of counsel because he failed to
show he was prejudiced by counsel's alleged
ineffectiveness. The test for ineffective assistance of
counsel comes from Strickland v. Washington, 466
U.S. 668 (1984). Strickland “requires that the
movant show that he was prejudiced by counsel's error,
and ‘that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different.' ”
Williams v. United States, 452 F.3d 1009, 1014 (8th
Cir. 2006) (quoting Anderson v. United States, 393
F.3d 749, 752-53 (8th Cir. 2005)). “ ‘A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.' ”
Id. (quoting Strickland, 466 U.S. at 694).
determining if prejudice exists, the court must consider the
totality of the evidence . . . .” Id. (quoting
Strickland, 466 U.S. at 695).
In doing this analysis, the court should be mindful of (1)
the credibility of all witnesses, including the likely
impeachment of the uncalled defense witnesses; (2) the
interplay of the uncalled witnesses with the actual defense
witnesses called; and (3) the strength of the evidence
actually presented by the prosecution.
Id. (quoting Strickland, 466 U.S. at 695).
“Because both prongs must be met for the petitioner to
succeed, ‘a court need not determine whether
counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the
alleged deficiencies.' ” Taylor v. Kelley,
825 F.3d 466, 470 (8th Cir.), ce ...