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Ford v. United States

United States District Court, D. South Dakota, Southern Division

March 31, 2017

ROBERT FORD, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Petitioner, 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.

         FACTUAL BACKGROUND[1]

         Ford 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.

         On 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. Id.

         STANDARD OF REVIEW

         The 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. 1994).

         DISCUSSION

         I. 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).

         “When 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 ...


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