United States District Court, S.D. West Virginia, Huntington Division
C. CHAMBERS, CHIEF JUDGE
matter was referred to the Honorable Cheryl A. Eifert, United
States Magistrate Judge, pursuant to 28 U.S.C. §
636(b)(1)(B) for proposed findings of fact and recommendation
on Movant Charles Richard Burke's pro se Motion
to Vacate, Set Aside, or Correct Sentence, pursuant to 28
U.S.C. § 2255. ECF No. 187. In her Proposed Findings and
Recommendations, the Magistrate Judge recommends that
Movant's motion be denied and this action be dismissed.
ECF No. 200. Movant objects. ECF No. 201. Upon review, the
Court agrees with the Magistrate Judge, DENIES Movant's
Objections, and DISMISSES this action. The Court also DENIES
Movant's “Motion to Expand the Scope of 2255
Proceedings Record.” ECF No. 202.
Court is required to “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). The Court need not conduct a de novo
review when a party “makes general and conclusory
objections that do not direct the court to a specific error
in the magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982) (citations omitted). In reviewing
Movant's objections, “this Court will consider the
fact that [Movant] is acting pro se, and [his] pleadings will
be accorded liberal construction.” Kerr v. Marshall
Univ. Bd. of Governors, No. 2:14-CV-12333, 2015 WL
1405537, at *5 (S.D. W.Va. Mar. 26, 2015),
aff'd, 824 F.3d 62 (4th Cir. 2016) (citations
case, Movant makes three objections. First, Movant argues
that the Magistrate Judge erred by not finding that his
counsel provided him erroneous advice. In 2012, Movant pled
guilty in this Court to Conspiracy to Distribute 280 Grams or
More of Cocaine Base and a Quantity of Oxycodone in violation
of 21 U.S.C. § 846. In exchange for his guilty plea, the
United States agreed to dismiss a count charging Movant with
distributing cocaine base and agreed to not file an
information against him pursuant 21 U.S.C. § 851. Movant
states that he pled guilty because his attorney told him he
would be exposed to a mandatory life sentence without the
possibility of release if the United States filed the
information against him. Movant now contends, however, that
his attorney's advice was incorrect because he did not
have the requisite number of prior convictions under 21
U.S.C. § 841(b)(1)(A) to receive a life sentence.
Section 841(b)(1)(A) provides, in part, that “[i]f any
person commits a violation of this subparagraph . . . after
two or more prior convictions for a felony drug offense have
become final, such person shall be sentenced to a mandatory
term of life imprisonment without release[.]” 21 U.S.C.
§ 841(b)(1)(A), in part.
to his 2012 conviction, Movant pled guilty in 1994 to three
felony drug related offenses in the United States District
Court for the Northern District of Ohio. Two of those
offenses (Counts 1 and 2) involved conduct that ended on
September 29, 1993. Superseding Indictment, ECF No.
187-2 at 10-11. The third offense (Count 4) involved conduct
that occurred on November 8, 1993. Id. at 11-12.
Thereafter, in 1996, Movant was convicted in Ohio state court
of three felony drug trafficking offenses that occurred on
November 8, 1993. As Movant's federal and state
convictions both involved conduct that occurred on November
8, 1993, Movant argues his convictions only may be counted as
one offense under § 841(b)(1)(A).
as fully explained by the Magistrate Judge, Movant's
argument ignores the fact his federal convictions involved
two separate criminal episodes that constitute separate
offenses. The Fourth Circuit has stated that, “[i]n
analyzing whether convictions are from separate and distinct
criminal episodes, we consider, among other things, whether
the time between the crimes underlying the convictions
allowed the defendant sufficient time ‘to make a
conscious and knowing decision to engage in another drug
sale.'” United States v. Robinson, 92
F.App'x 48, 49 (4th Cir. 2004) (quoting United States
v. Letterlough, 63 F.3d 332, 337 (4th Cir. 1995)). Here,
Movant's criminal activity resulting in his federal
convictions occurred more than one month apart (on September
29, 1993 and November 8, 1993) and were not part of a single
act of criminality. Movant's state sentence was based on
conduct that occurred on November 8, 1993, not for conduct
that occurred on September 29, 1993. Therefore, Movant's
attorney accurately advised him that he would face a
mandatory life sentence without the possibility of release
under 21 U.S.C. § 841(b)(1)(A) if the Government filed
an information against him pursuant 21 U.S.C. § 851.
Accordingly, the Magistrate Judge correctly determined Movant
did not establish any grounds to prove ineffective assistance
of counsel under Strickland v. Washington, 466 U.S.
668 (1984), based upon this advice.
Movant argues his attorney told him he would not be
considered a career offender if he pled guilty. However, as
indicated by the Magistrate Judge, the facts are inconsistent
with Movant's argument. In 2014, prior to Movant filing
this action, his previous counsel wrote him a letter
recalling their conversations about whether he had two prior
drug convictions and discussing the fact that the discovery
showed he had two prior convictions. Counsel agreed to argue
against the application of the career offender status, but
explained to him that, if his argument failed, the career
offender provision would be applied to him. ECF No. 187-1 at
2. The sentencing transcript is consistent with this letter
in that counsel argued against application of the career
similar to the Magistrate Judge, this Court gives little
credibility to Movant's assertion he would not have pled
guilty if he knew he would be considered a career offender.
As explained above, the United States agreed not to file an
information pursuant to § 851 in exchange for
Movant's guilty plea. If Movant had not pled guilty, he
would have faced the possibility of life imprisonment without
the possibility of release. Under these circumstances,
“there simply is no reasonable probability that, but
for counsel's alleged career offender error, Burke would
not have pled guilty and would have insisted on going to
trial.” Prop. Findings and Recommendations, at
12. Therefore, for these reasons, the Court finds Movant is
unable to demonstrate ineffective assistance of counsel based
upon the fact he was found to be a career offender.
Movant argues that his appellate counsel was ineffective
because he should have sought a rehearing with the Fourth
Circuit after he lost his appeal and sought additional
evidence for the record proving he did not qualify as a
career offender. However, as the Magistrate Judge found,
there was no good faith basis for appellate counsel to seek a
rehearing. Therefore, the Court finds Movant has failed to
demonstrate ineffective assistance of counsel on the part of
his appellate counsel.
also has filed a separate “Motion to Expand the Scope
of 2255 Proceedings Record” (ECF No. 202), in which he
seeks a sworn affidavit from his counsel addressing his
ineffective assistance claims. Movant also seeks to be able
to add documents related to his prior charges and
convictions. The Court has reviewed the documents attached to
his motion and finds they do nothing to change the fact
Movant has two prior convictions. In fact, Movant previously
attached the same documents to his original motion (ECF No.
187-2), and both the Magistrate Judge and this Court cites
those very documents in denying his claims. Likewise, under
the circumstances of this case, the Court sees no purpose in
directling counsel to file an affidavit addressing
Movant's claims. Thus, the Court DENIES the motion.
for the foregoing reasons, the Court DENIES Movant's
Objections to the Magistrate Judge's Proposed Findings
and Recommendations (ECF No. 201), ADOPTS AND INCORPORATES
HEREIN the Proposed Findings and Recommendations (ECF No.
200), DENIES Movant's Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No.
187), DENIES Movant's “Motion to Expand the Scope
of 2255 Proceedings Record” (ECF No. 202), and
DISMISSES this action from the docket of the Court.
Court additionally has considered whether to grant a
certificate of appealability. See 28 U.S.C. §
2253(c). A certificate will not be granted unless there is Aa
substantial showing of the denial of a constitutional
right." Id. at § 2253(c)(2). The standard
is satisfied only upon a showing that reasonable jurists
would find that any assessment of the constitutional claims
by this Court is debatable or wrong and that any dispositive
procedural ruling is likewise debatable. Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The Court
concludes that the governing standard is not satisfied in
this instance. Accordingly, the Court DENIES
a certificate of appealability.
Court DIRECTS the Clerk to send a copy of this Order to
Magistrate Judge Cheryl A. Eifert, counsel of ...