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Hopkins v. United States

United States District Court, S.D. West Virginia

March 29, 2019

STEPHEN MICHAEL HOPKINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John T X. Copenhaver, Jr. Senior United States District Judge

         Pending before the court are the following motions by the movant: (1) to vacate, set aside, or correct sentence (Document No. 210) pursuant to 28 U.S.C. § 2255, filed on July 15, 2015; (2) to amend or supplement his section 2255 motion (Document No. 240), filed on March 24, 2017; and (3) to amend or supplement his section 2255 motion (Document No. 243), filed on July 28, 2017. All motions were filed pro se although the Federal Public Defender briefed the original section 2255 motion insofar as it related to issues in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015), having been appointed only and solely for purposes of Johnson, pursuant to the court's order of June 14, 2016 by the Honorable Robert C. Chambers, United States District Judge.

         This action was previously referred to the Honorable Omar J. Aboulhosn, United States Magistrate Judge, for submission to the court of his Proposed Findings and Recommendation (“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B), which he entered on March 22, 2018.

         In his thorough report, the magistrate judge recommends that the court grant the first motion to amend that was filed on March 24, 2017, deny the second motion to amend that was filed on July 28, 2017, deny the section 2255 motion, and dismiss this case from the court's docket. On May 10, 2018, movant filed his objections. Inasmuch as the court discerns no prejudice to the respondent, the court hereby grants movant's unopposed May 29, 2018 motion to supplement his objections. The court reviews de novo those matters in the PF&R, to which the objections pertain. 28 U.S.C. § 636(b)(1).

         I. Background

         The PF&R includes an informative description of the history of the case. Movant pled guilty, on January 30, 2013, to one count of aiding and abetting the possession with intent to distribute a quantity of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The plea agreement included a waiver of appellate rights, other than an appeal of the denial of movant's motion to suppress (later affirmed on appeal), and a waiver of collateral review challenges, except that the movant retained the right to do either on the ground of ineffective assistance of counsel. At sentencing, the court applied certain enhancements, including one for career offender status set forth in his plea agreement, and sentenced movant to serve a total term of 151 months of incarceration followed by three years of supervised release. The Fourth Circuit, in an opinion focused on the motion to suppress, affirmed the district court's judgment on April 23, 2014, by its mandate entered on May 15, 2014.

         II. Objection to Finding the Guilty Plea Voluntary

         The movant argues that his counsel, Mr. A. Courtenay Craig, did not properly advise him of the nature of the charges against him by characterizing his role in the offense as somehow being limited to “constructive possession.” Obj. at 12 quoting the January 30, 2013 plea hearing transcript (ECF No. 209 in the movant's criminal case; hereinafter, “Transcript” or “Tr.”) at 5-6. A quotation of the colloquy featuring Mr. Craig's remark follows:

         [THE COURT] Q. Now, let me note to you that if this case proceeded to trial, in order for you to stand convicted of the charge contained in that indictment against you, it would be necessary that the government prove to the satisfaction of this court and a jury beyond a reasonable doubt the following essential elements of that offense, and they are as follows:

First of all, that on or about March 16, 2001, (sic, 2011) at or near Charleston, Kanawha County, West Virginia, you possessed with intent to distribute a quantity of heroin, a Schedule I controlled substance. Do you understand the first element?
A. Yes.
Q. And secondly, in doing so, that you were aided and abetted by Eddie Daivon Morgan. Do you understand that as well?
MR. CRAIG: Your Honor, it was our understanding under this, that he would either be charged as a principal or as an aider and abettor, and my client is willing to make a plea that will establish constructive possession. It was never suggested to us that Mr. Hopkins was the principal.
THE COURT: The question is whether or not the defendant did or did not possess with intent to distribute a quantity of heroin. That's an essential element. And if it's not ...

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