United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
E. SEIBERT UNITED STATES MAGISTRATE JUDGE.
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.
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.
Conviction and Sentence
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.
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.
Federal Habeas Corpus
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 ...