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Adkins v. United States

United States District Court, N.D. West Virginia

December 7, 2016

CHARLES ADKINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:16cv209

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         On November 2, 2016, the pro se Petitioner, a former federal inmate now serving a three-year term of supervised release while residing in Clarksburg, West Virginia, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 382. The motion was not on a court-approved form. That same day, the Clerk of the Court sent the Petitioner a Notice of Deficient Pleading, advising him that he had twenty-one (21) days to correct his Motion by filing it on the correct form in accordance with Local Rule of Prisoner Litigation Procedure (“LR PL P”) 3.4. ECF No. 384. On November 16, 2016, Petitioner filed a document titled Motion of Notice. ECF No. 388. Petitioner filed his court-approved form motion to vacate on November 21, 2016. ECF No. 389. On December 5, 2016, Petitioner filed a motion for court-appointed counsel and a motion for oral argument. ECF Nos. 392 & 393. By separate Orders entered December 6, 2016, both motions were denied. ECF Nos. 394 & 395.

         The undersigned now issues this Report and Recommendation on Petitioner's motion without holding an evidentiary hearing. For the reasons stated below, the undersigned recommends that the District Judge deny and dismiss Petitioner's motion [ECF No. 382 and 389] under 28 U.S.C. §2255.

         II. Facts

         A. Conviction and Sentence

         The Petitioner was charged as one of two defendants in a ten-count fourth superseding indictment with a forfeiture allegation on August 6, 2013. ECF No. 125. On August 8, 2014, pursuant to a written plea agreement, Petitioner entered a plea of guilty to Count One, charging him with failure to update his sex offender registration, in violation of 18 U.S.C. § 2250(a), and to Count Two, conspiring to knowingly and corruptly attempt to obstruct, influence, and impede any official proceeding, in violation of 18 U.S.C. §§ 1512(c)(2) and 1512(k). The Petitioner's plea agreement contained a waiver of the right to appeal his sentence or to appeal any other issue in his case on any ground whatsoever. ECF No. 265 at 5 - 6. Petitioner was sentenced on the same day he entered his plea, to a term of 51 months imprisonment on both counts, to run concurrent with each other, to be followed by three years supervised release. ECF No. 267.

         B. Direct Appeal

         Petitioner timely appealed. On appeal, Petitioner argued that his attorney had lied to him when he told Petitioner that “the plea agreement was the only viable solution to . . . [my] case.” ECF No. 301 at 1. The Government moved to dismiss the appeal as barred by Adkins' waiver of the right to appeal in the plea agreement. By Order entered June 30, 2015, a three judge panel of the Fourth Circuit Court of Appeals dismissed the appeal finding that the appeal fell squarely within the compass of Petitioner's waiver of appellate rights. ECF No. 317. Adkins' petition for writ of certiorari with the United States Supreme Court was denied on October 5, 2015.

         C. Federal Habeas Corpus

         On November 2, 2016, Petitioner filed the instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ECF No. 382. In his later-filed court approved form motion, Petitioner asserted four grounds for relief, which because they were repetitive, were reordered and condensed for clarity into two grounds. Petitioner did not file a memorandum in support. In his motion, he argues that:

1) he has legal documents to support his claim and prove his innocence [ECF No. 389 at 5];
2) defense counsel Tom Dyer and appellate counsel Ryan Kennedy were ineffective, misled and misguided him, failed to properly represent him and violated his civil rights [id. at 6 & 10], when
a) defense counsel Tom Dyer refused to provide him with full discovery and would not present Petitioner's legal documents that ...

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