United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Elijah Wilson, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1.
The government moves to dismiss the petition for failure to
state a claim. Docket 27. The case was referred to a United
States Magistrate Judge under 28 U.S.C. § 636(b)(1)(A)
for a report and recommendation. On January 2, 2018,
Magistrate Judge Veronica Duffy submitted her report and
recommendation for disposition of this case to the court.
Docket 47. Wilson objects to the proposed findings and
recommendations under 28 U.S.C. § 636(b)(1). For the
following reasons and after reviewing the objected maters de
novo, the report and recommendation is adopted as
supplemented by this opinion.
factual background was provided by the magistrate judge in
her report and recommendation. Docket 47. Thus, this court
will only give a simple explanation and point to the
magistrate judge's report and recommendation for the full
April 8, 2014, Wilson was charged with commercial sex
trafficking in violation of 18 U.S.C. §§ 1591 and
1594(a). United States v. Wilson, CR 14-40038
(hereinafter “CR”), Docket 2. Wilson and the
government reached a plea agreement. It required Wilson to
enter a plea of guilty to a superseding information that
charged Wilson with attempting to transport a minor for the
purpose of engaging in illicit sexual conduct in violation of
18 U.S.C. §§ 2423(b) and (e). CR Docket 46 ¶
C. The court accepted Wilson's guilty plea. CR Docket 106
at 11. On July 16, 2015, the court sentenced Wilson
to 46 months imprisonment and 5 years supervised release. CR
Docket 74 and 76.
filed a motion to vacate, set aside or correct his sentence
on March 30, 2017. Docket 1. In response, the government
moved to dismiss Wilson's motion for failure to state a
claim upon which relief can be granted. Docket 27.
report and recommendation, Magistrate Judge Duffy recommends
that the government's motion to dismiss be granted.
Docket 47. Wilson timely filed objections to the report and
recommendation. In his objection, Wilson alleges a
misrepresentation of facts proving the charge, ineffective
assistance of counsel, and a violation of his fifth amendment
right of due process. Docket 51.
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. Under 28 U.S.C. § 636(b)(1),
the court reviews de novo any objections that are timely made
and specific. See also Fed. R. Civ. P. 72(b)
(“The district judge must determine de novo any part of
the magistrate judge's disposition that has been properly
objected to.”). Then the court may “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). The court is not obligated
to review the portions of the report to which no objection
was made. Thomas v. Arn, 474 U.S. 140, 149 (1985).
raises seven objections to Magistrate Judge Duffy's
report and recommendation. Docket 51. Wilson's first four
objections are to factual conclusions in the report and
recommendation that he believes are false. Id.
¶ 1-4. Wilson argues that the evidence does not show he
“attempted or co[n]spired to commit the acts as
d[e]scribed in 18 U.S.C. 2423(a) or (b).” Id.
¶ 2. The report and recommendation does not claim that
Wilson engaged in a sexual act with any person. Rather, it
accurately recounts Wilson's admission in the factual
basis statement that states, “Wilson told officers he
was attempting to hire the advertised females in order to
transport them from South Dakota to a party which was to take
place in Des Moines, Iowa.” CR Docket 47 at 2. This
fact was affirmed during Wilson's change of plea hearing
in court when Wilson admitted that he signed the factual
basis statement and that the written facts were true.
Id. A guilty plea is a solemn declaration in open
court that a defendant in fact is guilty of the offense with
which he is charged and it carries “a strong
presumption of verity.” Blackledge v. Allison,
431 U.S. 63, 74 (1977).
contends that the description of the facts in his case
preclude him from being guilty of 18 U.S.C. §§
2423(b) and (e). Docket 51 ¶ 2. Wilson has not, however,
offered any new evidence to contradict his signed statement
of facts nor has he shown that “failure to consider the
claims will result in a fundamental miscarriage of
justice.” Lawrence v. Branker, 517 F.3d 700,
714 (4th Cir. 2008) (quotation omitted). The