United States District Court, S.D. West Virginia, Bluefield Division
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY, UNITED STATES MAGISTRATE JUDGE.
before the court is Movant's pro se Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (ECF No. 112), as
amended by the documents in ECF Nos. 127-129. This matter is
assigned to the Honorable David A. Faber, Senior United
States District Judge. By Standing Order, Movant's motion
was referred to the undersigned United States Magistrate
Judge for the submission of proposed findings of fact and a
recommendation for disposition pursuant to 28 U.S.C. §
AND PROCEDURAL BACKGROUND
February 4, 2012, Movant, Brady Woods (hereinafter
“Defendant”) was charged in a criminal complaint
filed in this court with one count of possession with intent
to distribute cocaine base in violation of 21 U.S.C. §
841(a)(1). (ECF No. 1). On February 4, 2012, Defendant
appeared before a United States Magistrate Judge for an
initial appearance, and subsequently appeared for a
preliminary and detention hearing on February 8, 2012. At
that hearing, Defendant's counsel moved for a competency
evaluation, which was granted and Defendant was remanded to
custody for that purpose. (ECF No. 7). On July 6, 2012,
Defendant appeared for a competency and detention hearing at
which he was found to be competent and was detained. (ECF No.
15). He waived his preliminary hearing. (ECF No. 17).
17, 2012, Defendant was indicted by a federal grand jury and
charged with one count of possession with intent to
distribute cocaine base in violation of 21 U.S.C. §
841(a)(1). (ECF No. 18). On October 9, 2012, Defendant
appeared with his initial court-appointed counsel, Mary Lou
Newberger, at a hearing to enter a guilty plea. However,
during the hearing, Defendant requested new counsel and
stated that he no longer wished to plead guilty. The District
Court granted the motion for new counsel and, on October 16,
2012, attorney William S. Winfrey was appointed to represent
Defendant and Defendant's trial was continued. (ECF Nos.
January 15, 2013, a federal grand jury returned a five-count
superseding indictment against Defendant, charging him with
the following crimes: two counts of distribution of cocaine
base in violation of 21 U.S.C. § 841(a)(1) (Counts One
and Two); one count of possession with intent to distribute
more than 280 grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (Count Three); one count of possession with
intent to distribute a quantity of cocaine base in violation
of 21 U.S.C. § 841(a)(1) (Count Four); and one count of
possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c) (Count Five).
April 1, 2013, a pre-trial motions hearing was held at which
the district court considered Defendant's motion to
suppress evidence seized during the search of his home on
February 3, 2012. (ECF No. 65). On April 8, 2013, the
district court denied the motion to suppress. See United
States v. Woods, No. 1:12-cr-00157, 2013 WL 12107462
(S.D. W.Va. Apr. 8, 2013) (also docketed as ECF No. 67).
April 10, 2013, Defendant appeared for trial on the
superseding indictment, and on April 11, 2013, he was found
guilty on all of the counts therein. (ECF No. 79). On June
25, 2013, the district court denied Defendant's motion
for a new trial. United States v. Woods, no.
1:12-cr-00157, 2013 WL 12109522 (June 25, 2013) (also
docketed as ECF No. 87).
October 7, 2013, Defendant was sentenced to 228 months in
prison, followed by a five-year term of supervised release,
and a $500 special assessment. In arriving at Defendant's
sentence, the district court found that his total offense
level under the United States Sentencing Guidelines for
Counts One through Four was 34, with a criminal history
category of II. The Defendant's criminal history category
was calculated based upon prior convictions detailed in
paragraphs 61, 62 and 65 of his Presentenced Investigation
Report (“PSR”), which is filed under seal in ECF
No. 100. A guideline offense level of 34 and a criminal
history category of II resulted in a sentencing guideline
range of 168-210 months in prison. Defendant was sentenced at
the bottom of the guideline range for Counts One through
Four. Defendant was also subject to a consecutive five-year
(60 month) sentence on the firearm offense in Count Five.
October 9, 2013, Defendant filed an appeal in the United
States Court of Appeals for the Fourth Circuit asserting that
the district court erred when it denied his motion to
suppress. On April 9, 2014, the Fourth Circuit affirmed the
district court's judgment and found no error in the
district court's determination of the reasonableness of
the search of defendant's house. United States v.
Woods, No. 13-4791, 565 Fed.Appx. 259 (4th
Cir. Apr. 9, 2014) (also docketed as ECF No. 108).
October 21, 2014, Defendant filed the instant section 2255
motion, asserting the following grounds for relief:
1. The prosecution withheld Brady material regarding
a government witness and the agent's notes of the
witness's debriefing and the redacted transcript of his
debriefing, in violation of the Fifth Amendment right to due
2. The search of the front porch was in violation of the
Fourth Amendment against unreasonable searches and should
have been suppressed.
3. The prosecution violated the Sixth Amendment Confrontation
Clause by using perjured testimony.
4. Ineffective assistance of appellate counsel due to his
failure to investigate deficiencies of the presentence report
and failure to send documents to Defendant that were
requested in preparation of further litigation of conviction.
(ECF No. 112 at 4-5).
January 14, 2016, Defendant filed a motion to amend his
section 2255 motion seeking to add a fifth ground for relief,
which states as follows:
5. Government violated due process guarantees by overstepping
state jurisdiction in a state criminal matter. The State of
West Virginia had jurisdiction, and by assuming jurisdiction
without letting state arraign petitioner violated
petitioner's rights under due process.
(ECF No. 118).
4, 2016, pursuant to the undersigned's Order, the United
States of America (hereinafter “the Government”)
filed a Response to Defendant's section 2255 motion. (ECF
No. 126). Then, more than a month later, and nearly two years
after filing his initial motion, on June 22, 2016, Defendant
filed two Affidavits in support of his section 2255 motion
(ECF Nos. 127 and 128), and another motion, titled “28
U.S.C. § 2255 Motion to Correct Sentence” (ECF No.
129), which was docketed as another motion to amend the
section 2255 motion. The single issue raised in this second
motion to amend appears to be an expansion of Defendant's
claim of ineffective assistance of appellate counsel raised
in Ground Four of his initial section 2255 motion, which is
further supported by Defendant's Affidavits. The second
motion to amend asserts, in pertinent part, as follows:
Petitioner's sentence was in violation of his substantial
rights and must be corrected, due to his appellate
counsel's negligence in looking into his criminal
history. Petitioner's appellate counsel never once
contacted his previous attorney for charges that his
presentence report's information consisted of after
Petitioner specifically informed him of a defect in his
(Id. at 1). In support of this claim, Defendant
relies upon Molina-Martinez v. UnitedStates, 136 S.Ct. 1338 (2016), a decision addressing
whether an incorrect sentencing guideline calculation