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Harper v. United States

United States District Court, N.D. West Virginia, Martinsburg

October 23, 2019

RODNEY HARPER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          GROH JUDGE.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On March 12, 2018, pro se petitioner filed a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255. ECF No. 125.[1] On May 14, 2019, the undersigned entered an Order [ECF No. 131] advising Petitioner that his § 2255 Motion would be dismissed as untimely within fourteen days unless he could demonstrate that the statute of limitations could be equitably tolled. Petitioner received this Order on June 3, 2019, and has failed to respond.

         II. FACTS

         A. Conviction and Sentence

         Petitioner was one of two Defendants charged in a five-count indictment returned on October 1, 2013. ECF No. 30. Petitioner was charged in Count One with Conspiracy to Engage in Sex Trafficking in violation of Title 18, United States Code, Section 1594(c); in Count Two with Aiding and Abetting Sex Trafficking in violation of Title 18, United States Code, Sections 1591(a) and 2; in Count Four with Travel Interstate Commerce with Intent to Engage in Illicit Sexual Conduct in violation of Title 18, Untied States Code, Section 2423(b); and in Count Five with Possession with Intent to Distribute Heroin in violation of Title 21, United States Code, Section 841(a)(1). On March 3, 2014, pursuant to a written plea agreement, Petitioner pled guilty to Count Two of the indictment. ECF No. 75, 77. On June 2, 2014, the Court sentenced Petitioner to a term of 211 months of imprisonment followed by 5 years of supervised release and dismissed the remaining charges. ECF No. 87. The Court entered the judgment on June 18, 2014. ECF No. 99.

         B. Appeal

         Petitioner did not pursue a direct appeal. ECF No. 130 at 2.

         C. Instant § 2255 Motion to Vacate

         Petitioner's Motion sets forth four issues. First, Petitioner alleges that there was a sentencing guideline error, stating that his base offense level should have been a 32 instead of a 37. ECF 130-1 at 3. He cites Rosales-Mireles v. United States, 138 S.Ct. 1897 (2018), contending the decision created a new law that “guidelines [e]rror ‘shall' be [c]orrected.” ECF No. 130-1 at 3. Second, Petitioner claims that his two-level enhancement under § 2G1.3(b)(4)(A) of the guidelines is double jeopardy. He again cites Rosales-Mireles contending that a sentencing calculation error must be remanded. ECF No. 130-1 at 4. Third, Petitioner contends that his offense level was enhanced two levels in his PSR without explanation. ECF No. 130-1 at 5. He cites Class v. United States, 138 S.Ct. 798 (2018) contending the decision created a new law that “Defendant does not give up right to make challenge to constitutional issue by simply pleading guilty.” ECF. No. 130-1 at 5. Finally, Petitioner alleges that his counsel, Nicholas J. Compton, Assistant Federal Public Defender, was ineffective at sentencing for not pursuing the errors listed in this motion as grounds 1, 2, and 3. ECF No. 130-1 at 5.

         The undersigned must first review this motion to decide if it is timely filed.[2]

         D. Recommendation

         The undersigned now issues this Report and Recommendation on Petitioner's Motion without holding an evidentiary hearing. Based upon review of the record, the undersigned recommends that Petitioner's Motion under 28 U.S.C. ...


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