United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOCS. 210, 229, &
Christina Reiss, District Judge United States District Court.
matter came before the court for a review of the Magistrate
Judge's January 10, 2018 Report and Recommendation
C'R&R") (Doc. 234). On May 1, 2017, Defendant
Videsh Raghoonanan, who is self-represented, filed a motion
pursuant to 28 U.S.C. § 2255 seeking a reduction of his
145 month term of imprisonment on the grounds that he
received ineffective assistance of counsel, and arguing a new
rule of law announced in Dean v. United States, 137
S.Ct. 1179 (2017) gives district courts discretion to order
consecutive sentences for trafficking and firearm possession
in furtherance of drug trafficking convictions. (Doc. 210.)
On July 28, 2017, Defendant filed an amended motion further
contending that the Supreme Court's holding in
Johnson v. United States, 135 S.Ct. 2551 (2015)
mandates the court vacate his conviction for possessing a
firearm in furtherance of a drug trafficking crime. (Doc.
229.) The government opposes both motions, contending that
his claims are time barred by § 2255's one-year
statute of limitations and because they lack merit. Neither
party has filed an objection to the R & R, and the time
to do so has expired.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge 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); accord
Cullen, 194 F.3d at 405. A district judge, however, is
not required to review the factual or legal conclusions of
the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
thirty-eight page R & R, the Magistrate Judge carefully
reviewed Defendant's factual and legal claims and
properly recommended that the court deny the § 2255
motion and amended motion. As the first basis for
recommending denial of the motions, the Magistrate Judge
noted that Defendant's claims are barred by the one-year
statute of limitations contained in § 2255. See
28 U.S.C. § 2255(f).
Magistrate Judge nevertheless proceeded to analyze
Defendant's claims and observed that Defendant did not
establish that his counsel's performance was deficient in
failing to raise meritless legal arguments based on
distinguishable cases, and that Defendant failed to support
his contention that, but for his counsel's inadequate
representation, the court would have dismissed charges
against him or altered his sentence. The Magistrate Judge
committed no error in concluding that Defendant failed to
satisfy either prong of the Strickland test for
establishing ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 687 (1984)
("First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
made errors so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
respect to Defendant's arguments regarding the
applicability of Dean, wherein the Supreme Court
considered the district courts' discretion when
calculating sentences under 18 U.S.C. § 924(c), the
Magistrate Judge accurately noted that the right recognized
in that case was not made retroactively applicable to cases
on collateral review; that Defendant's case is factually
distinguishable due to the mandatory minimum terms required
by law; and because the court exercised its discretion in
sentencing him to a term of imprisonment within the plea
agreement's agreed-upon range.
considering the applicability of Johnson to
Defendant's conviction, the Magistrate Judge accurately
found that Defendant's conviction under § 924(c) did
not rely on a predicate crime of violence. Defendant was
convicted of possessing a firearm in furtherance of a drug
trafficking crime, as opposed to in furtherance of a crime of
violence. Accordingly, Johnson is inapplicable.
the Magistrate Judge did not err in his well-reasoned
conclusion recommending that the court deny Defendant's
request for counsel. See Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) ("Our cases establish that the
right to appointed counsel extends to the first appeal of
right, and no further.").
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's R & R (Doc. 234) as the court's Opinion
and Order, DENIES Defendant's motion for appointment of
counsel, DENIES Defendant's motion to vacate and amended
motion to vacate, and DISMISSES Defendant's § 2255
motion and amended motion (Docs. 210 & 229).
to Fed. R. App. P. 22(b)(1) and 28 U.S.C. § 2253(c)(2),
the court DENIES Defendant a certificate of appealability in
this matter because he has failed to make a ...