IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
UNITED STATES OF AMERICA
BILLY CRAIG UNDERWOOD
Criminal No. 09-50090
O R D E R
Now on this 31st day of July, 2013, comes on for consideration
the Magistrate Judge's Report and Recommendation (document #65)
entered by United States Magistrate Judge Setser in this matter,
and Underwood's Objection to Magistrate Judge's Report and
Recommendation (document #67). The Court, having carefully
reviewed said Report and Recommendation (hereinafter "R & R") as
well as the objections thereto, finds as follows:
Before this Court is Billy Craig Underwood's Habaes
Corpus petition which was filed on May 30, 2012, pursuant to 28
U.S.C. § 2255. By way of background, the Court notes the
On November 4, 2009, a nineteen-count Indictment was
returned charging Underwood with wire fraud, bank fraud, and money
laundering, in violation of Title 18 U.S.C. § 1343, 1344, and 1957.
(b) On February 5, 2010, Underwood entered into a Plea
Agreement, and entered a plea of guilty to Count I of the
Indictment - wire fraud.
(c) A sentencing hearing was held on September 7, 8, and 10,
2010, and Judgment was entered on September 14, 2010, wherein
Underwood was sentenced to one hundred eight (108) months
imprisonment; three (3) years of supervised release; $100.00
special assessment; $15,000 fine; and $1,887,983.90 in restitution.
An Amended Judgment was filed on September 24, 2010 to correct a
(d) Underwood filed a Notice of Appeal, arguing that the
Court erred in denying his request for a downward departure under
section 5H1.6 of the United States Sentencing Guidelines
(U.S.S.G.), failed to properly consider the 18 U.S.C. § 3553(a)
factors, and imposed an unreasonable sentence by declining to vary
below the Guidelines range. United States v. Underwood, 639 F.3d
1111 (8th Cir. 2011). The Eighth Circuit affirmed the sentence.
Id. at 1114.
In the instant pro se Motion to Vacate under 28 U.S.C. §
2255, Underwood asserts the following grounds for relief:
* Ground One -- he was denied effective assistance of counsel
during his plea and sentencing stages of the proceedings, as his
counsel did not conduct a complete investigation of the law and was
completely unfamiliar with the sentencing guidelines;
* Ground Two -- he was denied the effective assistance of
counsel by the cumulative errors of counsel during the plea and
sentencing proceedings, as counsel failed to arrange for character
witnesses to appear on behalf of Underwood at sentencing, no
letters of support were provided, and he failed to raise and
challenge issues which were relevant to sentencing, such as failing
to raise the issue clarifying the incremental monetary amounts that
* Ground Three -- he was denied the effective assistance of
counsel because his counsel failed to advise him as to all facts
and law relevant to his decision to plead guilty; and,
* Ground Four -- he was denied the effective assistance of
counsel at the appellate stage of the proceedings, as appellate
counsel failed to develop viable issues for appeal;
Underwood raised two additional grounds for relief in his
Reply brief, which the Court will treat as Grounds Five and Six.
* Ground Five -- the Government breached the terms of the
Plea Agreement; and,
* Ground Six -- counsel was ineffective because he failed to
prepare the witness for the sentencing hearing.
The R & R now before the Court recommends that
Underwood's 28 U.S.C. § 2255 motion be denied in its entirety and
dismissed with prejudice.
Underwood has filed objections to the R&R. The
objections restate the arguments submitted in the initial pleading
and offer neither law nor fact requiring departure from the R&R.
Based upon the Magistrate Judge's thorough and well-
reasoned comments, the Court finds that there is no merit to
Underwood's arguments and the same should be overruled.
6. In light of the foregoing, the R&R will be approved and
adopted as stated -- and will be ordered implemented.
IT IS THEREFORE ORDERED that the Underwood's Objection to
Magistrate Judge's Report and Recommendation (document #67) are
IT IS FURTHER ORDERED that the Magistrate Judge's Report and
Recommendation (document #65) is adopted in toto.
IT IS FURTHER ORDERED that Underwood is denied relief on his
§ 2255 motion, as the grounds stated are without merit, and this
matter is dismissed with prejudice.
IT IS FINALLY ORDERED that the Court hereby declines to issue
a certificate of appealability as Underwood has not made a
“substantial showing of the denial of a constitutional right,” as
required for the issuance of a certificate of appealability. 28
U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
/s/Jimm Larry Hendren
HON. JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE