United States District Court, N.D. West Virginia, Martinsburg
CHRISTOPHER W. ODEN, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 3:11-CR-56 (BAILEY)
ORDER ADOPTING REPORT AND RECOMMENDATION
PRESTON BAILEY, UNITED-STATES DISTRICT JUDGE.
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.
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
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].
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].
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].
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.
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].
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.
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].
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].
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 ...