Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sumlin v. Entzel

United States District Court, N.D. West Virginia

January 31, 2019

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

          ORDER ADOPTING REPORT AND RECOMMENDATION [ECF NO. 10], OVERRULING PETITIONER'S OBJECTIONS [ECF NO. 12], AND DENYING AND DISMISSING § 2241 PETITION [ECF NO. 1]

          THOMAS S. KLEEH UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Magistrate Judge Michael J. Aloi's Report and Recommendation (“R&R”) concerning the Petition for Habeas Corpus Pursuant to § 2241 filed by pro se petitioner Robert L. Sumlin (“Petitioner”). For the reasons set forth below, the Court ADOPTS the R&R. ECF No. 10.

         I. FACTUAL BACKGROUND

         Petitioner is currently incarcerated at FCI Hazelton.[1] On April 14, 2014, he pled guilty to Counts One and Nine of a superceding indictment in the United States District Court for the Southern District of Ohio. ECF No. 95 (S.D. Ohio).[2] On October 16, 2014, he was sentenced to 288 months in prison and 5 years of supervised release for Count One, along with 120 months in prison and 3 years of supervised release for Count Nine, to run concurrently for a total of 288 months in prison and 5 years of supervised release. ECF No. 128 (S.D. Ohio), at 3-4.

         Petitioner filed a notice of appeal, and the sole ground he raised was the reasonableness of his sentence. See ECF No. 153 (S.D. Ohio), at 3. He did not argue ineffective assistance of counsel or prosecutorial misconduct. Id. The United States Court of Appeals for the Sixth Circuit dismissed the appeal based on the waiver of appellate rights in his plea. Id. Petitioner did not file for a writ of certiorari.

         Petitioner also filed a motion to vacate pursuant to 28 U.S.C. § 2255 in the Southern District of Ohio. ECF No. 154 (S.D. Ohio). He alleged (1) that the offense level he reached under the sentencing guidelines was improperly enhanced by finding the wrong amount of cocaine was involved in the conspiracy and that he was a member of the conspiracy; and (2) that he made a proffer he believed should have resulted in a 3-point reduction in his offense level under the guidelines. Id. at 13-14. On August 29, 2016, the Southern District of Ohio dismissed the motion with prejudice. ECF No. 156 (S.D. Ohio).

         On November 22, 2017, Petitioner filed his 28 U.S.C. § 2241 petition in this Court. ECF No. 1. On September 4, 2018, he filed a mandamus action in the United States Court of Appeals for the Fourth Circuit for undue delay. ECF No. 8. On December 1, 2018, the case was transferred from United States District Judge Irene M. Keeley to United States District Judge Thomas S. Kleeh. ECF No. 9.

         In his § 2241 petition, Petitioner asserts (A) ineffective assistance of counsel during his plea agreement bargaining; (B) ineffective assistance of counsel during sentencing preparation; (C) prosecutorial misconduct due to his unawareness of the facts to be used against him; and (D) prosecutorial misconduct due to not receiving the benefit from his proffer that he believed he would receive. ECF No. 1, at 5-6. In his petition, he claims that he already asserted these grounds in his appeal to the Sixth Circuit and in his § 2255 petition. Id. at 3. Petitioner requests that the Court vacate his guilty plea and allow him to plea anew or, in the alternative, reduce his sentence. Id. at 8.

         II. LEGAL STANDARD

         A petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is intended to address the execution of a sentence, not its validity. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Prisoners who wish to challenge the validity of their convictions or sentences are required to do so pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2255. Nonetheless, § 2255 provides a “savings clause” that allows a prisoner to challenge the validity of his conviction or sentence under § 2241 if he can show that § 2255 is “inadequate or ineffective to test the legality of his detention.” Id. § 2255(e).

         The Fourth Circuit has established the following requirements to show that a § 2255 petition is inadequate or ineffective to test the legality of a conviction:

(1) at the time of conviction, settled law of this circuit or of the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prison was convicted is deemed not to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping provisions of ยง 2255 because the new rule is not one of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.