United States District Court, N.D. West Virginia
ROBERT L. SUMLIN, Petitioner,
WARDEN FREDERICK WENTZEL, JR., Respondent.
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
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.
September 4, 2018, Sumlin filed a mandamus action in the
Fourth Circuit Court of Appeals, alleging undue delay in
these proceedings. ECF No. 8.
Miscellaneous Case Order entered December 1, 2018, this case
was reassigned from Judge Irene M. Keeley to Judge Thomas S.
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.
Underlying Conviction, Appeal, and Motion to
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.
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.
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
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.
§ 2241 Petition
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 ...