United States District Court, N.D. West Virginia
December 7, 2016
CHARLES ADKINS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:16cv209
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 would have proved his innocence; and
b) appellate counsel Ryan Kennedy wanted to argue with him;
would not use Petitioner's legal documents that would
have proved his innocence [id. at 8]; and would not
file Petitioner's claims of ineffective assistance of
counsel. Id. at 7.
question on the court-approved form Motion to Vacate,
regarding the timeliness of his motion, Petitioner stated
“my timeframe has not expired yet.” Id.
relief, Petitioner asks the court to “Vacate Indictment
Count #1.” Id.
upon review of the record, the undersigned recommends that
the Petitioner's Motion be denied and dismissed from the
docket because it is untimely.
1996, the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”) was enacted, establishing a
one-year limitation period within which to file any federal
habeas corpus motion. 28 U.S.C. § 2255. This one year
period runs from the latest of the following:
1) the date on which the judgment of conviction becomes
2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
28 U.S.C. § 2255(f)(1-4).
general, to satisfy the statute of limitations, Petitioner
must have filed his motion within one year from “the
date on which [his] judgment of conviction bec[ame]
final.” 28 U.S.C. §2255(f)(1). The Fourth Circuit
has determined that a federal prisoner's conviction
becomes final on the date upon which he fails to pursue
further direct appellate review. United States v.
Sanders, 247 F.3d 139, 142 (4th Cir. 2001).
Petitioner's appeal was dismissed by the Fourth Circuit
on June 30, 2015. However, because Petitioner pursued a writ
of certiorari, his conviction did not become
“final” pursuant to §2255(f)(1) until
certiorari was denied, on October 5, 2015.
See Supreme Ct. Rule 13.3; Clay v. United
States, 537 U.S. 522, 527 (2003). Accordingly,
petitioner had until October 5, 2016 to timely file his
§2255 motion, but his motion was not filed until
November 2, 2016. Because petitioner did not file his motion
until almost one month after the one-year statute of
limitations had already run, the undersigned finds that the
motion is untimely under subsection (1).
a federal habeas court, prior to trial, perceives a pro
se § 2255 petition to be untimely and the
Government has not filed a motion to dismiss based on the
one- year limitations period, the court must warn the
prisoner that the case is subject to dismissal pursuant to
§ 2244(d) absent a sufficient explanation that it is
timely based on equitable tolling principles or any of the
circumstances enumerated in § 2255(f).” Hill
v. Braxton, 277 F.3d 701, 707 (4th Cir.
2002); U.S. v. Sosa, 364 F.3d 507 (4th
Petitioner is hereby notified that his section 2255 action
will be dismissed as untimely, unless he can demonstrate,
within the objection period described below, that his
petition can be salvaged by § 2255(f)(3) or the
principle of equitable tolling.
upon review of the record, the undersigned recommends that
the Petitioner's Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [ECF No. 382 & 389] be DENIED and DISMISSED
because the Petitioner's motion is untimely.
fourteen (14) days after being served with a copy of this
Report and Recommendation, any party may file with the Clerk
of Court written objections identifying those portions of the
recommendation to which objections are made and the basis for
such objections. A copy of any objections shall also be
submitted to the United States District Judge. Failure to
timely file objections to this recommendation will result in
waiver of the right to appeal from a judgment of this Court
based upon such recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91
(4th Cir. 1984); cert denied, 467 U.S.
Court directs the Clerk of the Court to provide a copy of
this Report and Recommendation to the pro se
Petitioner by certified mail, return receipt requested, to
his last known address as reflected on the docket sheet.