United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
Patrick Noel Milton Harding filed a pro se motion to
vacate, set aside, or correct his federal sentence pursuant
to 28 U.S.C. § 2255. (Docket 1). The government filed a
motion to dismiss Mr. Harding's § 2255 motion.
(Docket 10). Pursuant to 28 U.S.C. § 636(b)(1)(B) and
this court's October 16, 2014, standing order, the motion
was referred to United States Magistrate Judge Veronica L.
Duffy. The magistrate judge filed a report and recommendation
concluding the court should grant the government's motion
and dismiss and deny Mr. Harding's motion to vacate, set
aside or correct his sentence. (Docket 19). Mr. Harding filed
objections to the report and recommendation. (Dockets 21, 22
court reviews de novo those portions of the report
and recommendation which are the subject of objections.
Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir.
1990); 28 U.S.C. § 636(b)(1). The 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). The magistrate
judge determined the court lacks subject matter jurisdiction
over Mr. Harding's § 2255 motion. (Docket 19 at
¶ 5-10). Analyzing Mr. Harding's late § 2255
motion as a writ of error coram nobis, the
magistrate judge concluded Mr. Harding is not entitled to the
relief he seeks. Id. at pp. 10-23. Specifically, the
magistrate judge found Mr. Harding fails to maintain a viable
claim based on ineffective assistance of counsel.
Id. at pp. 10-21. While Mr. Harding was not warned
of the deportation consequence of his conviction, the
magistrate judge determined Mr. Harding procedurally
defaulted any claim on that ground. Id. at pp.
21-23. The magistrate judge also concluded Mr. Harding's
“to be determined” claims are not sufficient to
receive § 2255 relief. Id. at p. 23.
Harding's objections are mostly general arguments, and he
does not clearly state an objection to the magistrate
judge's statement of facts. Id. at pp. 2-5. To
the extent Mr. Harding advances objections to this portion of
the report and recommendation, they are overruled. The court
recalls presiding over Mr. Harding's underlying criminal
case and finds the report and recommendation's factual
statement accurately and succinctly describes the history
relating to Mr. Harding's § 2255 motion.
Harding's objections primarily target the magistrate
judge's legal determinations. (Dockets 21, 22 & 24).
The court finds no legal error in the magistrate judge's
report and recommendation. With respect to subject matter
jurisdiction, the magistrate judge correctly concluded Mr.
Harding was not “in custody” when he filed his
§ 2255 motion. (Docket 19 at pp. 5-10); see Kandiel
v. United States, 964 F.2d 794, 794-98 (8th Cir. 1992).
Contrary to Mr. Harding's objections, he fails to
demonstrate prejudice in the context of his claim based on
ineffective assistance of counsel. (Docket 19 at pp. 10-21);
see Arias-Gonzales v. United States, 486 Fed.Appx.
617, *1 (8th Cir. 2012) (per curiam) (unpublished). The
magistrate judge properly analyzed Mr. Harding's
arguments about not being aware of the immigration
consequences of his eventual conviction; they are
procedurally defaulted. (Docket 19 at pp. 21-23); see
McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001). Mr. Harding's “to be determined”
claims do not warrant § 2255 relief. (Docket 19 at p.
23); see Voytik v. United States, 778 F.2d 1306,
1308 (8th Cir. 1985). The court overrules Mr. Harding's
objections to the magistrate judge's report and
on the above analysis, it is
that Mr. Harding's objections (Dockets 21, 22 & 24)
FURTHER ORDERED that movant's motion to show cause
(Docket 16) is denied as moot.
FURTHER ORDERED that the report and recommendation (Docket
19) is adopted in full.
FURTHER ORDERED that respondent's motion to dismiss is
granted (Docket 10).
FURTHER ORDERED that Mr. Harding's motion (Docket 1) is
denied with prejudice.
FURTHER ORDERED that, pursuant to 28 U.S.C. § 2253(c)
and Rule 11 of the Rules Governing Section 2255 Cases in the
United States District Courts, the court declines to issue a
certificate of appealability. A certificate may issue
“only if the applicant has made a substantial
showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (emphasis added). A
“substantial showing” under this section is a
showing that “reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). In other words, a “substantial
showing” is made if a “court could resolve the
issues differently, or the issues deserve further
proceedings.” Cox v. Norris, 133 F.3d 565, 569
(8th Cir. 1997). Mr. Harding has not made a substantial
showing of the denial of a constitutional right.
the court declines to issue a certificate of appealability,
Mr. Harding may timely seek a certificate of appealability
from the United States Court of Appeals for the Eighth
Circuit under Fed. R. App. P. 22. See Rule 11(a) of the Rules