United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO.
M. KEELEY UNITED STATES DISTRICT JUDGE.
pending before the Court is the motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence, which was
filed by petitioner Charles Adkins (“Adkins”) on
November 2, 2016 (Dkt. No. 1). Pursuant to the local rules,
the petition was referred to the Honorable James E. Seibert,
United States Magistrate Judge, for initial review. On
November 21, 2016, Adkins filed his petition on the
Court-approved form (Dkt. No. 7). Thereafter, on December 5,
2016, he moved for the appointment of counsel and asked that
the Court schedule oral argument for his case (Dkt. Nos. 10;
11). Both motions were denied on December 6, 2016 (Dkt. Nos.
12; 13). On December 7, 2016, Magistrate Judge Seibert filed
a Report and Recommendation (“R&R”) in which
he recommends that the petition be denied and dismissed as
untimely (Dkt. No. 14). Adkins filed his objections to the
R&R on December 14, 2016 (Dkt. No. 17).
August 8, 2014, pursuant to a written plea agreement, Adkins
pleaded guilty to Counts One and Two of a ten-count fourth
superseding indictment filed against him (Crim. No. 1:13cr17,
Dkt. No. 268). That same day, the Court sentenced Adkins to
51 months of imprisonment to be followed by 3 years of
supervised release. Id. Thereafter, Adkins appealed
the judgment, but the Court of Appeals for the Fourth Circuit
dismissed the appeal on June 30, 2015, finding that it fell
“squarely within the compass of his waiver of appellate
rights” (Crim. No. 1:13cr17, Dkt. No. 317). The Supreme
Court of the United States denied his petition for a writ of
certiorari on October 5, 2015.
pending petition, filed on November 2, 2016, Adkins asserts
several grounds for relief (Dkt. No. 7). He first claims to
have legal documentation that supports his innocence.
Id. at 5. He also argues that both his trial and
appellate counsel were ineffective by failing to provide him
with full discovery, refusing to present legal documents that
would prove his innocence, and, in the case of appellate
counsel, not pursuing a claim of ineffective assistance of
trial counsel. Id. at 6-10. He asserts that the
petition is timely and asks that the Court vacate Count One
of the indictment. Id. at 13.
reviewing a magistrate judge's R&R made pursuant to
28 U.S.C. § 636, the Court must review de novo
only the portion of the R&R to which an objection is
timely made. 28 U.S.C. § 636(b)(1)(C). On the other
hand, “the Court may adopt, without explanation, any of
the magistrate judge's recommendations to which the
prisoner does not object.” Dellacirprete v.
Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007)
(citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983)). Courts will uphold those portions of a recommendation
as to which no objection has been made unless they are
“clearly erroneous.” See Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
28 U.S.C. § 2255(a), a prisoner may move the sentencing
court “to vacate, set aside or correct” his
sentence if he claims it “was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”
However, Congress has established a one-year limitation
period in which such a motion may be filed. The 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 due diligence.
28 U.S.C. § 2255(f). Therefore, unless the special
circumstances of Subsections (2)-(4) apply, a petitioner must
typically file a motion pursuant to § 2255 within one
year from “the date on which the judgment of conviction
becomes final.” A conviction becomes final on the date
when a prisoner fails to pursue further direct appellate
review. United States v. Sanders, 247 F.3d 139, 142
(4th Cir. 2001). The one-year period may be equitably tolled
“only if [a prisoner] shows (1) that he has been
pursuing his rights diligently, and (2) some extraordinary
circumstance stood in his way and prevented ...