United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
Carl Campbell, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. (Docket 1
and 22). The United States now moves to dismiss
Campbell's § 2255 motion without holding an
evidentiary hearing. (Docket 30). 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
granting the United States's motion to dismiss. (Docket
30). Campbell timely filed his objection to the report and
recommendation. (Docket 41). Campbell also moves to amend his
§ 2255 motion. (Docket 42). For the following reasons,
the court adopts Magistrate Judge Duffy's report and
recommendation, dismisses Campbell's § 2255 motion,
and denies his motion to amend.
factual background was provided by Magistrate Judge Duffy in
her report and recommendation. (Docket 39). Campbell's
only factual objection to the Report and Recommendation
addresses dates relied on in pages 28-33. (Docket 41).
Therefore, with the exception of the objected to dates, this
court will rely on the magistrate judge's report and
recommendation for the full background.
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
has ten objections to the Report and Recommendation. (Docket
41). First, he objects to the factual finding that the police
interview of L.O. occurred on February 3, 2011. He claims it
occurred on February 3, 2012. Id. Campbell also
states there is a July 27, 2012, law enforcement interview of
L.O. to which he has been denied access. Id.
de novo review of Campbell's first objection, the court
finds that the facts are accurately stated in the report and
recommendation. Campbell claims counsel was ineffective
because counsel failed to impeach L.O. or object to her
testimony. The testimony of a witness may be discredited or
impeached by showing that she previously made statements that
are inconsistent with her present testimony. Fed.R.Evid. 613.
After a review of the record, there are no inconsistent
statements to use for impeachment. The trial record shows
L.O. testified that Campbell never pressured her to do
anything. See JT at Docket No. 129-2 at p. 74.
Furthermore, L.O. testified that she was the person who
initiated the request that led to an attempted commercial sex
act. See Id. at pp. 65-66. Because defense counsel
elicited this testimony from L.O., there was no need to
the date of the February 3, 2011, interview, Campbell himself
refers to a February 3, 2011, interview in his brief in
opposition to the United States's motion to dismiss for
failure to state a claim. See Docket 35 at pp.
49-50. Furthermore, Campbell's objection fails to provide
a reason as to why the sequence of interviews is relevant to
impeaching L.O. Even if the February 3, 2011, interview was
February 3, 2012, the content would not change and create an
inconsistent statement appropriate for impeachment.
the existence of the July 27, 2012, law enforcement
interview, Campbell alleges that the interview contains a
statement by L.O. that he never asked her to prostitute for
him and never showed L.O. how to create and post a Backpage
ad. (Docket 41). As stated above, defense counsel elicited
similar testimony without referencing a July 27, 2012,
interview. Therefore, Campbell has not shown he was
remaining nine objections to the report and recommendation
are objections to the legal conclusions. The objections are
conclusory without argument. The court has conducted a de
novo review of the remainder of the report and
recommendation, and adopts it in full.