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Dogan v. United States

United States District Court, S.D. West Virginia, Charleston Division

April 26, 2018

CHARLES DOGAN, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are the following: (1) Movant's pro se Motion to Vacate, Set Aside, or Correct Sentence by A Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Document No. 181), filed on July 16, 2015; (2) Movant's “Successive Petitions Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence” (Document Nos. 192 and 196), filed on June 27, 2016, and July 12, 2016; and (3) The United States' “Motion to Withdraw Referral to Magistrate Judge and To Stay Case Pending Supreme Court Ruling” (Document No. 199), filed on August 4, 2016. By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 182.) By Order entered on January 6, 2016, the above case was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 187.)

         FACTUAL AND PROCEDURAL BACKGROUND

         A Criminal Action No. 2:96-00066:

         On August 21, 1996, Movant pled guilty to one count of Possession with Intent to Distribute Cocaine Base (Count Six) in violation of 21 U.S.C. § 841(a)(1). (Criminal Action No. 2:15-11006, Document No. 28.) On January 2, 1997, after a change in counsel, Movant filed a Motion to Withdraw his guilty plea. (Id., Document No. 53.) Following a hearing, the District Court denied Movant's Motion to Withdraw on March 31, 1997. (Id., Document No. 56.) A Presentence Investigation Report was prepared. The District Court determined Movant had an Base Offense Level of 26, and a Total Offense Level of 34, the Court having applied an enhancement to an adjusted offense level of 34 pursuant to U.S.S.G. § 4B1.1 because Movant met the criteria for career offender status.[1] (Id., Document No. 67, pp. 32 - 34.) The District Court sentenced Movant on April 8, 1997, to a 288-month term of imprisonment “to run consecutively to the 24-month term of imprisonment imposed by this court on April 8, 1997, for the revocation of defendant's supervised release term, for a total term of 312 months.” (Id., Document No. 57.) The District Court further imposed a five-year term of supervised release and a $50 special assessment. (Id.)

         On April 14, 1997, Movant filed a Notice of Appeal. (Id., Document No. 58.) In his appeal, Movant argued that the District Court erred by denying his motion to withdraw his guilty plea. (Id., Document No. 199.) On July 15, 1998, the Fourth Circuit Court of Appeals affirmed the District Court's judgment. (Id.); United States v. Dogan, 155 F.3.d 561 (4th Cir. 1998).

         B. Section 2255 Motion:

         On February 11, 1999, Movant, acting pro se, filed his first Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and Memorandum in Support.[2] (Civil No. 2:99-00011, Document No. 81.) As grounds for habeas relief, Movant argued as follows: (1) The Government failed to prove by a preponderance of the evidence that Movant possessed crack cocaine; and (2) Congress lacked the authority to impose a separate punishment for crack cocaine under 21 U.S.C. § 841(a)(1). (Id.) By Proposed Findings and Recommendations entered on September 7, 1999, United States Magistrate Judge Jerry D. Hogg recommended that Movant's Section 2255 Motion be denied based upon procedural default and on the merits. (Id., Document No. 88.) By Memorandum Opinion and Order entered on May 23, 2000, United States District Judge Copenhaver adopted Judge Hogg's recommendation and denied Movant's Section 2255 Motion. (Id., Document Nos. 92 and 93.) Movant filed his Notice of Appeal on July 12, 2000. (Id., Document No. 94.) On August 21, 2001, the Fourth Circuit denied a Certificate of Appealability and dismissed the appeal. (Id., Document No. 104.)

         C. Section 3582 Motions:

         On March 31, 2008, Petitioner filed his first Motion to Reduce his Sentence pursuant to 18 U.S.C. § 3582 based upon the lowering of the crack cocaine guideline ranges. (Id., Document No. 109.) Movant filed his second Section 3582 Motion on June 25, 2008. (Id., Document No. 110.) By Order entered on June 23, 2009, the District Court denied both Motions after finding that Movant was not eligible for a sentencing reduction under the amended Guidelines because Movant was a career offender. (Id., Document No. 115.)

         D. Habeas Petition filed with Fourth Circuit:

         On January 12, 2010, Movant filed a habeas petition with the Fourth Circuit under the Court's original jurisdiction. (Id., Document Nos. 120 - 123.) In his Petition, Movant disputed his designation as a career offender and asserted that law enforcement officials engaged in threats and intimidation, which resulted in a fraudulent conviction. (Id.) On April 27, 2010, the Fourth Circuit denied Movant's Petition. (Id., Document No. 124 and 125.); United States v. Dogan, No. 10-1043 (4th Cir. April 27, 2010).

         E. Petition for Writ of Mandamus:

         On November 3, 2011, Movant filed a Petition for Writ of Mandamus. (Criminal Action No. 2:96-00066, Document No. 127, 131.) By Proposed Findings and Recommendations filed on December 15, 2011, United States Magistrate Judge Mary E. Stanley recommended that Movant's Petition for Writ of Mandamus be denied. (Id., Document No. 132.) By Memorandum Opinion and Order entered on December 15, 2011, Judge Copenhaver adopted Judge Stanley's recommendation and denied the Petition for Writ of Mandamus. (Id., Document Nos. 136 and 136.) On January 12, 2012, Movant filed a Motion for Reconsideration. (Id., Document No. 140.) Judge Copenhaver denied Movant's Motion on January 27, 2012. (Id., Document No. 142.) Movant filed his Notice of Appeal on February 16, 2012. (Id., Document No. 145.) The Fourth Circuit affirmed the District Court's decision on June 26, 2012. (Id., Document No. 163.)

         F. Petition for Writ of Coram Nobis:

         On January 18, 2013, Movant, acting pro se, filed his Petition for Writ of Error Coram Nobis. (Id., Document Nos. 169, 172, and 173.) By Proposed Finding and Recommendation entered on August 20, 2013, United States Magistrate Judge Dwane L. Tinsley recommended that Movant's Petition for Writ of Error Coram Nobis be denied. (Id., Document No. 176.) Movant filed his Objections on September 3, 2013. (Id., Document No. 178.) By Memorandum Opinion and Order filed on September 16, 2013, Judge ...


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