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Richardson v. United States

United States District Court, N.D. West Virginia

November 20, 2017

ROBERT ISADORE RICHARDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         On 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.

         II. FACTUAL AND PROCEDURAL HISTORY

         On May 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[1], 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[2] 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.

         The 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.[3] 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.

         The Petitioner than pursued a direct appeal to the United States Court of Appeals for the Fourth Circuit.[4] 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 claims:

(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

         Thereafter, 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.[5] 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.

         Thereafter, 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, [6] 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.

         Following 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.

         On 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.

         III. STANDARD OF REVIEW

         A. Review of ...


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