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Campbell v. United States

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

August 22, 2017

CARL CAMPBELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTIONS

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE.

         Petitioner, 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

         A full 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.

         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

         Campbell 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.

         After 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 impeach her.

         As 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.

         As to 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 prejudiced.

         Campbell's 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.

         II. ...


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