United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
August 3, 2017, Petitioner Karl Kevin Hill
("Petitioner" or "Defendant"), an inmate
at Hazelton Satellite Prison Camp, acting pro se,
filed a Petition for Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 (the "Petition"). ECF No.
The matter is now before the undersigned United States
Magistrate Judge for a Report and Recommendation to the
District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
LR PL P 2. For the reasons set forth below, this Court
recommends that the Petition be denied and dismissed without
FACTUAL AND PROCEDURAL HISTORY
Conviction and Sentence
December 15, 2004, a three count indictment was returned in
case number 2:04-CR-30, which charged Petitioner with
conspiracy to manufacture and distribute "crank",
possession with intent to distribute marijuana, and
possession of a firearm in furtherance of a drug crime. ECF
No. 1. On February 15, 2005, a superseding
indictment was returned which charged Petitioner
with: drug conspiracy involving marijuana and methamphetamine
in Count 1, in violation of 21 U.S.C §§
841(b)(1)(B), 846, and 851; possession of a firearm in
furtherance of drug crime in Count 2; and which named
Petitioner in Forfeiture Allegation 1. ECF No. 23.
unpublished per curiam opinion, the United States Court of
Appeals for the Fourth Circuit described the facts as
On September 22, 2004, police officers went to Karl Kevin
Hill's home in search of a fugitive. The officers knew
that Hill was a convicted felon. Sergeant Cunningham knocked
on the front door and announced his presence. When no one
responded, he pushed inside, he was met by Hill, who stated
that the fugitive had left and refused permission to search
the house. Cunningham asked another individual in the house
what his name was, and he identified himself. When Cunningham
stated that he too was a fugitive, the individual fled toward
the back of the house. Cunningham pursued, and during this
brief pursuit, he noticed a rifle in plain view.
While other officers detained the fugitive, Cunningham
arrested Hill for being a felon in possession of a firearm.
Meanwhile, two officers who had walked behind the house
smelled the "chokingly strong" odor of a
methamphetamine laboratory coming from a trailer behind the
residence. They asked Hill for permission to search his
trailer, and Hill said that the trailer did not belong to
him, and instead was owned by his sister. Hill told the
officers where his sister lived, and they traveled to her
home to seek permission to search the trailer. Hill's
sister gave written consent, stating that she was the owner
of the trailer, and the police officers found an operational
methamphetamine laboratory inside.
Hill moved to suppress items seized during the search of his
home and of his sister's trailer. The district court
suppressed the items seized from his home, including the
firearm, finding that Cunningham improperly entered
Hill's home without a warrant or exigent circumstances.
The court denied the motion to suppress evidence found in the
trailer, reasoning that Hill had no Fourth Amendment interest
in the trailer because he denied ownership or control.
On April 15, 2005, Hill pled guilty to conspiracy to possess
with the intent to distribute marijuana and methamphetamine.
Hill was released pending sentencing to permit him to
cooperate with the Government in hopes of earning a
substantial assistance departure. However, once on release,
Hill made no attempts to assist the authorities.
On February 13, 2006, Hill moved to withdraw his guilty plea,
stating that, while in police custody, he had been denied
medical assistance for his serious knee injury. Because the
Government had informed him that, if he pled guilty, they
would not oppose his motion for bond, Hill pled guilty in
order to be released from prison and seek medical attention.
Thus, he claimed that his plea was coerced and given under
ECF No. 158-2 at 2 - 4. On April 15, 2005, when Petitioner
entered his plea of guilty to Count 1 of the superseding
indictment, Count 2 and the forfeiture were dismissed. ECF
Nos. 59, 60, 88.
February 13, 2006, motion to withdraw his guilty plea was
filed on the same date that Petitioner's counsel moved to
withdraw from representing Petitioner. The motion to withdraw
asserted that there was an irreparable breakdown in the
attorney client relationship. ECF Nos. 75, 76. On February
15, 2006, the United States filed an objection to
Petitioner's motion to withdraw his guilty plea. ECF No.
77, On February 23, 2006, the Court appointed new counsel to
represent Petitioner. ECF No. 82. On April 4, 2006,
Petitioner filed an affidavit and documents in support of his
motion to withdraw his guilty plea. On May 9, 2006, the
presiding Magistrate Judge held a hearing on Petitioner's
February 13, 2006, motion to withdraw his guilty plea. ECF
Nos. 117, 122. On June 7, 2006, the Magistrate submitted a
Report and Recommendation that recommended Petitioner's
motion to withdraw his guilty plea be denied. ECF Nos. 119.
30, 2006, the District Court entered an order which adopted
the Report and Recommendation, and which thoroughly examined
and rejected Petitioner's claims. ECF No. 122 at 4 - 6.
On October 2, 2006, a Presentence investigation Report
("PSR") was filed with the Court. ECF No. 133.
Petitioner's PSR stated in part that during the law
enforcement search, "[b]ack at the house, approximately]
250 grams of marijuana and several guns were found in the
defendant's bedroom. More weapons were found in a wash
room, and one of the shotguns was loaded." ECF No. 133
at 7, ¶ 36. The PSR further stated that under the
"specific offense characteristic" section that,
"[t]he defendant possessed firearms. Therefore, pursuant
to U.S.S.G. §2D1.1(b)(1), a 2 level increase is
recommended." ECF No. 133 at 11, ¶ 55. The PSR
notes that the "minimum term of imprisonment is 10 years
and the maximum term of imprisonment is life." ECF No.
133 at 20, ¶ 95. On October 2, 2006, the Court adopted the
PSR without change, and sentenced Petitioner to 120 months of
incarceration, the minimum term of imprisonment. ECF Nos.
October 8, 2006, Petitioner filed a Notice of Appeal with the
United States Court of Appeals for the Fourth Circuit in that
Court's case number 06-5068. ECF No. 135. On August 15,
2007, the United States Court of Appeals for the Fourth
Circuit affirmed Petitioner's conviction in an
unpublished per curium opinion. ECF Nos. 155, 158, 158-2.
Petitioner's Motion to Vacate Under § 2255
April 16, 2008, Petitioner filed a pro se motion to vacate
under 28 U.S.C. § 2255. ECF No. 160. Following the
filing of additional pleadings by the Petitioner and
Respondent, on October 28, 2009, a Report and Recommendation
was fiied by United States Magistrate Judge John S. Kaull,
which recommended the motion to vacate be denied and the case
dismissed with prejudice. ECF No. 198. On March 26, 2010, the
Magistrate Judge's Report and Recommendation was adopted
by United States District Court Judge John Preston Bailey.
ECF No. 207. On April 2, 2010, Petitioner filed a notice of
appeal of Judge Bailey's order to the United States Court
of Appeals for the Fourth Circuit, in that court's case
number 10-6500. ECF No. 209. On August 30, 2010, the United
States Court of Appeals for the Fourth Circuit denied
Petitioner a certificate of appealability and dismissed his
appeal in an unpublished per curiam opinion. ECF Nos. 224,
225, C. Petitioner's First Petition for Habeas
Corpus Under § 2241
December 23, 2011, Petitioner filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2241 in case number
1:11-CV-206. ECF No. 1. Petitioner asserted that his
conviction was based on fraud, misrepresentation and false
testimony. ECF Nos 1, 5 at 5. On January 19, 2012, the
presiding United States Magistrate Judge issued a Report and
Recommendation that the petition be denied and dismissed with
prejudice. ECF No. 9. On October 10, 2012, the District Court
entered an "Order Adopting in part the Report and
Recommendation", which denied the § 2241 petition,
denied as moot Petitioner's motion to supplement the
record, and dismissed the matter without prejudice. ECF No.