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Adkins v. United States

United States District Court, N.D. West Virginia

December 19, 2016

CHARLES ADKINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:16CV209

          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. 1]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         Now 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).

         BACKGROUND

         On 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.

         In the 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.

         STANDARD OF REVIEW

         When 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 Cir. 2005).

         APPLICABLE LAW

         Under 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 final;
(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 governmental action;
(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 ...


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