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Sumlin v. Wentzel

United States District Court, N.D. West Virginia

January 7, 2019

ROBERT L. SUMLIN, Petitioner,
v.
WARDEN FREDERICK WENTZEL, JR., Respondent.

          KLEEH JUDGE.

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.

         I. Background

         On November 22, 2017, Robert L. Sumlin (“Petitioner”) filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241. By Order entered December 1, 2017, the Clerk was directed to apply the filing fee Sumlin paid in a previous case to the instant one and to correct the Respondent's name on the docket.

         On September 4, 2018, Sumlin filed a mandamus action in the Fourth Circuit Court of Appeals, alleging undue delay in these proceedings. ECF No. 8.

         By Miscellaneous Case Order entered December 1, 2018, this case was reassigned from Judge Irene M. Keeley to Judge Thomas S. Kleeh.

         Petitioner is a federal inmate housed at FCI Hazelton and is challenging the validity of his conviction and sentence imposed by the United States District Court for the Southern District of Ohio. This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. Facts

         A. Underlying Conviction, Appeal, and Motion to Vacate [1]

         On April 14, 2014, in the United States District Court for the Southern District of Ohio, Petitioner Pled guilty to Counts One and Nine of a Superseding Indictment. ECF No. 95. Count One was Conspiracy to Distribute and Possess with Intent to Distribute in Excess of One Kilogram of Heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), (b)(1)(B)(i) and (b)(1)(C), and Count Nine was being a Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). ECF No. 72.

         On October 16, 2014, Petitioner was sentenced to 288 months on Count One and 120 months on Count Nine, to run concurrently, for an aggregate sentence of 288 months imprisonment, and 5 years supervised release on Count One, and 3 years supervised release on Count Nine, to run concurrently, for an aggregate term of 5 years. ECF No. 128 at 3 - 4. He was also ordered to pay a $10, 000.00 fine and to forfeit a certain handgun and ammunition, $161.00 in U.S. currency, and a 2004 Mercedes Benz E500 automobile. Id. at 6 - 7.

         Petitioner filed a notice of appeal. ECF No. 130. The sole ground Petitioner raised on appeal was the substantive reasonableness of his sentence, in which he argued that the court did not properly consider the sentencing factors set forth in 18 U.S.C. § 3553. By Order entered June 1, 2015, the Sixth Circuit Court of Appeals granted the Government's motion to dismiss the appeal based on the waiver of appellate rights in Sumlin's plea agreement. ECF No. 153. Petitioner did not petition for a writ of certiorari.

         On May 31, 2016, Petitioner filed a Motion under 28 U.S.C. § 2255, alleging two grounds; first, that his offense level under the Sentencing Guidelines was improperly enhanced by finding that more than 4 kilograms of cocaine were involved in the conspiracy and by finding that he was a leader of the conspiracy; and second, that he made a proffer that he believed should have resulted in a 3-point reduction in his offense level under the Sentencing Guidelines. ECF No. 154. A July 11, 2016 Report and Recommendation (“R&R”) noted that Petitioner forfeited both grounds when he failed to raise them as objections to the PreSentence Investigation Report (“PSR”), and that no certificate of appealability should issue. ECF No. 155. On August 29, 2016, an Order Adopting the R&R was entered, and the § 2255 motion was dismissed with prejudice. ECF No. 156.

         B. § 2241 Petition

         In his pending Application for Habeas Corpus Pursuant to 28 U.S.C. § 2241, filed without a memorandum in support and without citing to any law, Petitioner argues that

1) ineffective assistance of counsel occurred during plea bargaining, when counsel failed to
a) ensure that he would receive sentence reduction for substantial assistance to the government, and failed to adequately explain the terms of the same, given that the terms were not included in the plea agreement;
b) failure to explain the concept of “relevant conduct” before Petitioner accepted the plea; and
c) failed to object to the agent making statements of fact in support of the ...

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