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Blaine v. United States

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

July 30, 2019

JOSHUA JAY BLAINE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING MOTION

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Movant, Joshua Jay Blaine, filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1.[1] The government now moves to dismiss the petition for lack of jurisdiction and failure to state a claim. Docket 40. The matter was referred 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 Blaine's motion be dismissed. Docket 45. Blaine filed a new motion for a stay of proceedings under 28 U.S.C. § 2255 and timely filed his objections to the report and recommendation. Docket 51; Docket 53. For the following reasons, the court adopts Magistrate Judge Duffy's report and recommendation, dismisses Blaine's motion, and denies Blaine's motion for a stay of proceedings.

         FACTUAL BACKGROUND

         A full factual background was provided by the magistrate judge in her report and recommendation. Docket 45 at 2-5. Thus, this court will only give a simple explanation and point to the magistrate judge's report and recommendation for the full background.

         Blaine pleaded guilty to the crime of being a felon in possession of two firearms. See Cr. Docket 19. The district court sentenced him to 115 months in prison. Cr. Docket 40. Blaine appealed, and the Eighth Circuit Court of Appeals affirmed his conviction. Cr. Docket 52. Attorney Timothy Langley represented Blaine in the district court. Cr. Docket 14. Attorney James Eirinberg represented Blaine during his appeal. Cr. Docket 50.

         On October 2, 2017, Blaine filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C § 2255. Docket 1. First, Blaine alleged that police conduct in searching his hotel room violated his Fourth and Fourteenth Amendment rights. Id. at 5, 8-14. Second, Blaine alleged that his trial and appellate counsel were ineffective for several reasons, including failing to raise Fourth Amendment violations, failing to suppress evidence, failing to allow Blaine to review the presentence report, advising Blaine not to withdraw his plea, failing to object to the probation officer's denial of acceptance of responsibility, and failing to allow Blaine to cooperate with the government. Id. at 5, 15-20.

         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 as 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)(C); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         DISCUSSION

         I. Fourth Amendment Claims

         Blaine objects to Magistrate Judge Duffy's report and recommendation on the Fourth Amendment issue. Docket 53 at 3-5. Blaine argues that the validity of the search of his hotel room after his arrest was not fully adjudicated. Id. at 3. Blaine raises one objection as to this issue, alleging that his right to appeal was frustrated by his appellate attorney's failure to include the correct pro se supplemental brief file. Id.

         A. Legal Standard

         A § 2255 motion is the “statutory analogue of habeas corpus for persons in federal custody.” Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987). A federal prisoner may seek relief from his sentence on the grounds that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962). Relief may be granted under § 2255 only for “transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (internal quotation omitted).

         “A § 2255 petition is not a second direct appeal and issues raised for the first time in a § 2255 petition are procedurally defaulted.” Meeks v. United States, 742 F.3d 841, 844 (8th Cir. 2014). When a petitioner asserts a claim that is procedurally defaulted, the claim can only proceed if the petitioner can show either that the procedural default should be excused because (1) there was both cause for the default and actual prejudice to the petitioner or (2) because the petitioner can show actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998).

         Generally, issues not raised before a magistrate cannot be later raised in objections to that magistrate's report and recommendation:

Courts routinely hold that while the Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not presented to the magistrate.

Vice v. Dooley, No. 5:14-CV-05076-JLV, 2015 WL 5773403, at *4 (D.S.D. Sept 29, 2015) (internal quotation omitted). A party raising new arguments in an objection to a magistrate's report and recommendation must show that a “manifest injustice” would result from the district court's failure to hear those arguments. Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000).

         B. Discussion

         In his § 2255 motion, Blaine argued that his Fourth Amendment rights had been violated by an illegal search. Docket 1 at 5. He challenged the search on several grounds, alleging an unreasonable search and seizure when law enforcement found firearms and drugs in his hotel room after his arrest. Id. at 8-14. None of these issues were raised in Blaine's direct appeal. See Cr. Docket 52 at 2. Because these issues should have been raised on direct appeal, they are procedurally defaulted. Meeks, 742 F.3d at 844. Magistrate Judge Duffy found no showing of actual innocence or cause for the default and actual prejudice to overcome the procedural default. Docket 45 at 9-10.

         In his objection to the report and recommendation, Blaine argues that these claims have not been procedurally defaulted. Docket 53 at 7. He claims that he attempted to bring these issues up in his pro se supplemental appellate brief that his appellate attorney agreed to file on his behalf, but his document never reached the Eighth Circuit Court of Appeals. Id. at 3. Instead, a document signed by a different prisoner describing an unrelated civil motion was filed by his appellate attorney. See Docket 53-4. Blaine believes that this explains why his appellate counsel and the Eighth Circuit had such trouble understanding his supplemental brief. Docket 53 at 3.

         This is a new argument, first raised in Blaine's motion to stay and then in his objections to the report and recommendation, both of which came after the report and recommendation itself. Docket 51 at 2-3; Docket 53 at 3. New arguments cannot be raised in objections to a magistrate's report and recommendation “absent compelling reasons[.]” Vice, 2015 WL 5773403, at *4 (internal quotation omitted). If Blaine did not discover this document issue until after the report and recommendation was issued, it might constitute a compelling reason to allow this objection, but Blaine does not clearly indicate when he first discovered the issue. But because this objection can be quickly determined on the merits, the court will consider it.

         Blaine's Fourth Amendment claims require a showing of actual innocence or cause for the default and actual prejudice to overcome procedural default after he failed to raise the claims on direct appeal. Bousley, 523 U.S. at 622. Blaine makes no showing of actual innocence. The document issue raised in his objection to the report and recommendation provides cause for his procedural default. But he cannot overcome the actual prejudice requirement. Blaine entered a voluntary, knowing, and intelligent plea of guilty. See Cr. Docket 19 ¶ 14; Cr. Docket 46 at 2-10. A guilty plea cuts off all constitutional claims that predate that plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The Eighth Circuit would have dismissed Blaine's Fourth Amendment claim for this reason. See Class v. United States, 138 S.Ct. 798, ...


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