United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
March 10, 2017, Robert Isadore Richardson
(“Petitioner”), proceeding pro se, filed
a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. ECF No. 273.
On March 10, 2017, the Clerk issued a Notice of Deficient
Pleading which advised the Petitioner that to comply with the
Local Rule of Prisoner Litigation Procedure 3.4, his motion
must be filed on the correct forms. ECF No. 276. On April 20,
2017, Petitioner re-filed his motion to vacate or set aside
under § 2255 on the appropriate court-approved forms.
ECF No. 280. The undersigned now issues this Report and
Recommendation on the Petitioner's motion without
requiring the Government to respond and without holding an
evidentiary hearing. For the reasons stated below, the
undersigned recommends that the District Judge deny and
dismiss the Petitioner's motion.
FACTUAL AND PROCEDURAL HISTORY
8, 2006, pursuant to a written plea agreement [ECF No. 88],
Petitioner entered a guilty plea to and was convicted of
possession with intent to distribute cocaine
base, in violation of 21 U.S.C. §
841(a)(1). ECF Nos. 88, 98. According to the Pre-Sentence
Report (“PSR”), the Petitioner was determined to
be a career offender within the meaning of U.S.S.G. §
4B1.1 of the Guidelines because: (1) Petitioner's
criminal history included four prior offenses involving
controlled substances; (2) the instant offense was a felony
involving a controlled substance; and (3) the Petitioner was
18 years or older at the time of its commission. ECF No. 94
at 7. On August 8, 2006, Petitioner was sentenced to a term
of 210 months imprisonment followed by a four-year term of
supervised release. ECF No. 98. The judgment for
Petitioner's conviction was signed by the presiding judge
and entered on August 28, 2006. ECF No. 98.
Petitioner did not file an appeal of his conviction or
sentence. However, on July 27, 2007, the Petitioner filed his
first Motion to Vacate pursuant to 28 U.S.C. § 2255,
wherein he sought relief on four grounds. ECF No. 103. On
June 23, 2008, Magistrate Judge James E. Seibert issued a
Report and Recommendation that the § 2255 motion be
denied as to the issues asserted in Grounds One, Three and
Four, and setting an evidentiary hearing as to Ground Two.
ECF No. 121. Following the September 5, 2008 evidentiary
hearing, Magistrate Judge Seibert entered a Report and
Recommendation concluding that Petitioner's § 2255
motion should be granted on the issue that Petitioner
“requested his attorney to file an appeal and counsel
ignored or refused this instruction.” ECF No. 141 at 6.
Magistrate Judge Seibert further recommended that the
original judgment should be vacated, and the Petitioner
should be re-sentenced because his trial counsel failed to
file an appeal as requested by the Petitioner. Id.
On April 30, 2009, the Report and Recommendation was adopted
by Order of Judge John Preston Bailey. ECF No. 151.
Petitioner appeared for re-sentencing on December 11, 2009,
and was sentenced to 210 months incarceration followed by a
four-year term of supervised release. ECF No. 169 at 2 - 3.
Petitioner than pursued a direct appeal to the United States
Court of Appeals for the Fourth Circuit. ECF Nos. 152 -
157. On appeal, Petitioner's counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738
(1967), “asserting that there [were] no meritorious
grounds for appeal, but questioning whether the district
court committed plain error in accepting [the] guilty
plea.” ECF No. 191 at 2. The Petitioner filed a
supplemental pro se brief in which he raised five
(1) the district court erred by amending the indictment
without presentment to a grand jury; (2) the district court
abused its discretion by proceeding with the second
indictment without resubmitting it to a grand jury; (3)
counsel was ineffective for failing to file a motion to
suppress; (4) counsel was ineffective for failing to appeal [
Petitioner's] designation as a career offender; and (5)
the district court abused its discretion in refusing to apply
a 1:1 ratio of crack to powder cocaine at sentencing.
Id. By per curiam opinion decided April 8, 2011, the
Fourth Circuit determined that the Petitioner validly waived
his right to appeal his conviction by pleading guilty and his
right to challenge his sentence, pursuant to the terms of the
plea agreement. Id. at 4. The Fourth Circuit did not
rule on the Petitioner's ineffective assistance of
counsel claims, noting that such claims are generally raised
by motion under 28 U.S.C. § 2255. Id. at 198.
on January 10, 2012, the Petitioner filed a second sequential
Motion to Vacate pursuant to 28 U.S.C.§ 2255. ECF No.
196. The Clerk issued a notice of Deficient Pleading on
January 10, 2012, which directed Petitioner to file his
second motion to vacate on court-approved forms. ECF No. 199.
On February 13, 2012, Petitioner refiled his motion to vacate
on court-approved forms and raised various grounds for relief
including lack of subject matter jurisdiction, and errors by
the District Court. ECF No. 202. On April 26, 2012, United
States Magistrate Judge David Joel submitted a Report and
Recommendation which recommended that the Petitioner's
§ 2255 Motion be denied and dismissed. ECF No. 223. On
October 4, 2012, the Court adopted the Report and
Recommendation, and denied and dismissed the Motion to
Vacate. ECF No. 235. On appeal, the Fourth Circuit Court of
Appeals affirmed. ECF No. 247.
Petitioner filed a third sequential Motion to Vacate Under 28
U.S.C. § 2255, on April 7, 2016, wherein he alleged that
pursuant to the decision in Johnson v. United
States,  his career offender status was no longer
valid under the residual clause. ECF No. 259. More
specifically, Petitioner alleged that his conviction for
second degree assault in the state of Maryland was not a
violent crime, and thus could not properly be used to qualify
him as a career offender. Id. at 4. On April 21,
2016, after filing his third sequential motion to vacate,
Petitioner sought authorization from the Fourth Circuit to
file a successive habeas application. Fourth Circuit Court of
Appeals docket 16-397, ECF No. 2. On May 5, 2016, the
undersigned entered a Report and Recommendation which
recommended that the Petitioner's § 2255 Motion be
denied and dismissed. ECF No. 266. On June 14, 2016, the
Fourth Circuit issued an order which denied Petitioner's
motion for authorization to file a successive habeas
application, noting that Johnson v. United States,
supra, which Petitioner relied upon in support of
his motion, “has no impact on [Petitioner's] career
offender status.” Fourth Circuit Court of Appeals
docket 16-397, ECF No. 8. On November 18, 2016, the District
Court adopted the Report and Recommendation, and denied and
dismissed the Motion to Vacate as an unauthorized second or
successive petition. ECF No. 271.
the Fourth Circuit's June 14, 2016 denial of
Petitioner's motion to file a successive habeas petition
but before the District Court's November 18, 2016
adoption of the Report and Recommendation, on June 28, 2016,
Petitioner sought another authorization from the Fourth
Circuit Court of Appeals to file a second or successive
§ 2255 petition. Fourth Circuit Court of Appeals docket
16-9729, ECF No. 2. On July 12, 2016, when the Fourth Circuit
denied Petitioner's application for authorization for a
second or successive § 2255 petition, the Court
determined in its order that, “Johnson has no
impact on Richardson's career offender status.” ECF
No. 280-2; Fourth Circuit Court of Appeals docket 16-9729,
ECF No. 6.
March 10, 2017, Petitioner filed his fourth sequential motion
pursuant to § 2255, and re-filed the motion on the
appropriate court-approved forms on April 20, 2017. ECF Nos.
273, 280. Therein, Petitioner asserts two grounds for relief:
(1) that he was improperly sentenced as a career offender
based on the holding of Johnson, supra, and
its progeny; and (2) what appears to be an argument that his
prior criminal history was improperly calculated. ECF No. 280
at 5, 6.
STANDARD OF REVIEW
Review of ...