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Greer v. United States

United States District Court, S.D. West Virginia, Beckley Division

November 1, 2019

LAGRANT GREER, Petitioner,



         The Court has reviewed the Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Document 46) filed on March 5, 2018, and brought on the grounds that his counsel, G. Todd Houck, was ineffective for failing to file an appeal. By Standing Order (Document 48) entered on March 7, 2018, this action was referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge, for submission to this Court of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. § 636. On September 17, 2019, the Magistrate Judge submitted a Proposed Findings and Recommendations (PF&R) (Document 84), wherein it is recommended that this Court deny the Petitioner's § 2255 motion. Following an Order (Document 86) granting an extension of time, objections to the Magistrate Judge's PF&R were due by October 10, 2019, and Petitioner timely filed his Objections to Report and Recommendations by the Magistrate Judge (Document 87) on October 10, 2019.


         Magistrate Judge Eifert's PF&R sets forth in detail the procedural and factual history surrounding the Petitioner's motion. The Court now incorporates by reference those facts and procedural history, but in order to provide context for the ruling herein, the Court provides the following summary.

         On November 14, 2014, the Petitioner, Lagrant Greer, pled guilty to one count of knowingly and intentionally distributing a quantity of heroin in violation of 21 U.S.C. § 841(a)(1). At that hearing, the Court made the Petitioner aware that he would have fourteen (14) days to file an appeal after entry of judgment. On February 25, 2015, the Petitioner was sentenced to 151 months in prison with a three-year term of supervised release. At the sentencing hearing, the Court reiterated that if Mr. Greer wanted to file an appeal, he had fourteen days to do so. Judgment was entered on February 26, 2015.

         Mr. Greer did not file an appeal following the proceeding. On May 13, 2015, Mr. Greer requested a copy of the docket sheet for his criminal case, which was provided that same day. On August 21, 2015, Mr. Greer filed a Motion for a Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2). That motion was denied by the Court on September 14, 2015.

         The Petitioner filed the instant § 2255 motion on February 22, 2018, arguing that his attorney failed to file an appeal after being expressly asked to do so. The Petitioner states that he sought an appeal of his conviction on the ground that he was improperly designated as a career offender.[1] Specifically, Mr. Greer believes his prior New Jersey conviction for possession of heroin was not a qualifying predicate offense for purposes of the career offender designation. As such, he believes that, if appealed, the appellate court would have overturned his sentence.

         The Petitioner filed a declaration asserting that he requested that his attorney file an appeal on the basis that he was not a career offender, and requested his attorney contact him as soon as it was filed. Mr. Greer further alleges that his attorney agreed to do so. Mr. Greer asserts that he “waited on counsel, ” and then attempted to call him but could not reach him. (Document 47 at 10.) After consulting with other inmates about the appeals process, Mr. Greer filed the instant § 2255 motion.

         On April 25, 2018, the Respondent filed a response to the § 2255 motion, requesting that the motion be denied and the case dismissed because the § 2255 motion was untimely filed after the one-year deadline for § 2255 motions. The Petitioner filed a reply, arguing that he is entitled to equitable tolling in light of his attorney's agreement and subsequent failure to file the appeal.

         The Magistrate Judge determined that a factual dispute existed regarding the Petitioner's request for an appeal. As such, the Magistrate Judge held an evidentiary hearing on April 10, 2019. At the hearing, the Petitioner testified that immediately after his sentencing hearing he requested that his attorney, Mr. Houck, file an appeal on the ground that he should not have been designated as a career offender. The Petitioner further testified that he saw Mr. Houck at the Southern Regional Jail in Beaver, West Virginia, a couple of days after the sentencing hearing and again requested an appeal. The Petitioner testified that he did not speak with Mr. Houck again after that interaction.

         At the evidentiary hearing, Mr. Houck testified that he was clear with Mr. Greer from the beginning of his representation that Mr. Greer would likely be sentenced as a career offender. Mr. Houck also testified that he informed Mr. Greer about the consequences of the appeal waiver in his plea agreement. Mr. Houck further testified that Mr. Greer never requested an appeal and that he did not talk to or hear from Mr. Greer again until he received notice of Mr. Greer's Motion to Reduce Sentence from the Court's electronic docket system.


         This Court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985). In addition, this Court need not conduct a de novo review when a party “makes general and conclusory objections that do not direct the Court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982). When reviewing portions of the PF&R de novo, the Court ...

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