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Oden v. United States

United States District Court, N.D. West Virginia, Martinsburg

September 6, 2017

CHRISTOPHER W. ODEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 3:11-CR-56 (BAILEY)

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY, UNITED-STATES DISTRICT JUDGE.

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation of United States Magistrate Judge James E. Seibert [Crim. Doc. 199; Civ. Doc. 5]. Pursuant to this Court's Local Rules, this action was referred to Magistrate Judge Seibert for submission of a proposed report and recommendation (“R&R”). Magistrate Judge Seibert filed his R&R on July 12, 2017, wherein he recommends this Court deny and dismiss the petitioner's Motion Under 28 U.S.C. § 2255 as an unauthorized second or successive motion.

         Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). Here, objections to Magistrate Judge Seibert's R&R were due within fourteen (14) days of service, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). The docket reflects that service was accepted on July 21, 2017. [Crim. Doc. 200; Civ. Doc. 6]. On July 28, 2017, the petitioner filed a Motion to Withdraw and Vacate His Vacation of 2255. [Crim. Doc. 201]. As the petitioner has filed nothing else that addresses the R&R, and the time to file objections has passed, this Court will construe the July 28 filing as an objection. Accordingly, this Court will review the portions of the R&R to which the petitioner objects under a de novo standard of review. The remainder of the R&R will be reviewed for clear error.

         I. BACKGROUND

         On September 20, 2011, a Grand Jury in the Northern District of West Virginia named the petitioner in a one-count Indictment with a forfeiture provision. [Crim. Doc. 1]. On October 28, 2011, the petitioner signed a plea agreement, agreeing to plead guilty to Count One, possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). [Crim. Doc. 30]. In the plea agreement, the petitioner waived his right to appeal and to collaterally attack his sentence. [Id. at 4-5]. On November 1, 2011, the petitioner entered his plea in open court [Crim. Doc. 32], and on February 26, 2012, the petitioner was sentenced [Crim. Doc. 42]. At sentencing, the Court declined to grant the petitioner's motion for a downward departure and, instead, sentenced the petitioner above the recommended guideline range to the maximum allowable sentence-a term of 120 months' imprisonment, to be followed by a twenty-year term of supervised released. [Crim. Docs. 45; 66].

         On February 13, 2012, the petitioner filed a Notice of Appeal [Crim. Doc. 47], and on August 24, 2012, by unpublished per curiam opinion, the Fourth Circuit Court of Appeals dismissed the appeal, finding that the petitioner's waiver of his right to appeal his sentence was enforceable and that the Government did not breach the plea agreement [Crim. Doc. 76].

         On February 17, 2012, the petitioner filed a Motion to Dismiss Counsel for Ineffective Counsel and be Appointed New Counsel in the sentencing court, which was docketed as both a motion to appoint counsel [Crim. Doc. 53] and as a motion to vacate [Crim. Doc. 52]. The motion was not filed on a court-approved § 2255 form, and the petitioner was sent a Notice of Deficient Pleading [Crim. Doc. 58], instructing him to correct his deficient pleadings within twenty-one days to maintain the civil case. He did not comply, and on April 2, 2012, the § 2255 motion was dismissed without prejudice for failure to prosecute. [Crim. Doc. 72].

         On August 15, 2013, the petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Crim. Doc. 99], arguing ineffective assistance of counsel for failure to investigate facts and circumstances of the offense relevant to application of the United States Sentencing Guidelines before advising the petitioner to sign the plea agreement, ineffective assistance of counsel for failure to inform the petitioner that the stipulation did not identify all facts in dispute, and ineffective assistance of counsel for failure to inform the petitioner of a dispute related to imposing a sentence above the minimum, pursuant to the stipulation. Magistrate Judge Seibert's April 7, 2014, R&R recommended that the petitioner's motion be denied and dismissed with prejudice because two of his ineffective assistance of counsel claims lacked merit and were unsupported by the record, and the third was barred by the waiver in his plea agreement. [Crim. Doc. 112]. The petitioner filed timely objections on May 5, 2014 [Crim. Doc. 120], yet on June 2, 2014, the objections were overruled, the R&R was adopted, and the petitioner's § 2255 motion was dismissed with prejudice [Crim. Doc. 122]. Thereafter, the petitioner moved for a certificate of appealability, which was denied by the Court. [Crim. Docs. 124; 130].

         On August 6, 2017, the petitioner filed a Notice of Appeal [Crim. Doc. 136] and Motion to Supplement Petitioner's [Habeas Corpus], which was docketed as a Motion to Amend/Correct his previous § 2255 motion [Crim. Doc. 134]. By unpublished per curiam opinion, the Fourth Circuit Court of Appeals dismissed the appeal and denied a certificate of appealability. [Crim. Doc. 145]. The Court then denied the petitioner's Motion to Amend/Correct as moot. [Crim. Doc. 147].

         On March 25, 2015, the petitioner filed a Motion to Grant a Downward Departure Pursuant to USSG § 5K2.23, § 1B1.3, § 4A1.3(b)(3)(B), and 18 U.S.C. § 3742(a)(2) [Crim. Doc. 153], which was denied on March 30, 2015 [Crim. Doc. 154]. The petitioner moved for reconsideration [Crim. Doc. 157], which was denied on May 26, 2015 [Crim. Doc. 159]. The petitioner appealed, and by unpublished per curiam opinion, the Fourth Circuit Court of Appeals affirmed the Court's denial of both motions. [Crim. Doc. 168].

         On March 31, 2015, in the Eastern District of Virginia, the petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, challenging the enhancements at sentencing and alleging that the Indictment was defective, that a miscarriage of justice occurred, and that under § 636(a), a magistrate judge could not take his plea. [See E.D. Va. Case No. 3:15-CV-196]. On January 11, 2016, the district judge adopted the magistrate judge's R&R and dismissed the petition for lack of jurisdiction. [Va. Doc. 22]. The petitioner appealed, and the Fourth Circuit Court of Appeals affirmed the district court's decision by unpublished per curiam opinion on May 5, 2017. [Va. Doc. 41].

         On June 6, 2016, almost two months after the petitioner filed the instant § 2255 motion, the petitioner filed a motion pursuant to 28 U.S.C. §§ 2244(b) and 2255(h) in the Fourth Circuit Court of Appeals, seeking authorization to file a second or successive § 2255 motion, relying on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), and the Fourth Circuit's decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). On June 28, 2016, the Fourth Circuit denied the motion because the petitioner was not sentenced under the Armed Career Criminal Act or as a career offender under the sentencing guidelines, a requirement pursuant to Johnson, and because Simmons was not retroactively applicable to cases on collateral review. [Crim. Doc. 198].

         On April 15, 2016, the petitioner filed a Motion for Refiling of § 2255 and to be Appointed Counsel, docketed as the instant Motion to Vacate under 28 U.S.C. § 2255 [Crim. Doc. 18; Civ. Doc. 1]. In his filing on the correct form, filed without a memorandum in support, the petitioner raises six somewhat unclear grounds, which the ...


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