United States District Court, S.D. West Virginia, Beckley Division
MEMORANDUM OPINION AND ORDER
C. BERGEK, UNITED STATES DISTRICT JUDGE.
September 26, 2017, the Movant filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside or correct sentence
(Document 256). By Standing Order (Document 257)
entered on September 27, 2017, the matter 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. §
March 25, 2019, the Magistrate Judge submitted a Proposed
Findings and Recommendation (PF&R) (Document 265),
wherein it is recommended that this Court deny the
Movant's § 2555 motion and dismiss this action with
prejudice. The United States filed a Response of the
United States to Proposed Findings and Recommendations
(Document 266), providing additional factual support for the
findings contained in the PF&R. As the result of deadline
extensions, objections to the Magistrate Judge's
Proposed Findings and Recommendation were due by
June 5, 2019. The Movant's Objections to the Proposed
Findings and Recommendations (Document 276) were filed
on June 3, 2019.
addition, the Court has reviewed the Movant's Section
2255 Rule 6 Leave of Court Request (Document 277),
wherein he seeks discovery related to an additional
allegation of unfairness during the trial. For the reasons
stated herein, the Court finds that the motion for discovery
should be denied and the PF&R should be adopted.
Judge Eifert's PF&R sets forth in detail the
procedural and factual history surrounding the Movant's
motion. The Court now incorporates by reference those facts
and procedural history, but in order to provide context, the
Court provides the following summary. The facts contained
herein are drawn from the testimony, evidence, and procedural
records in the underlying criminal case, as well as the
materials presented herein.
Movant, Mark Radcliffe, was convicted of conspiracy to tamper
with a witness on October 20, 2016, following a four-day jury
trial. On May 10, 2017, he was sentenced to 60 months in
prison, to be followed by three years of supervised release.
Radcliffe's charges arose from the arrest and prosecution
of his son, Seth Radcliffe.The United States presented
evidence that on December 23, 2015, Seth went to the home of
his former girlfriend, M.S., with a gun, shot through her
front door, and threatened a neighbor with the gun. After he
entered her home with the gun, she agreed to leave with him,
and he drove with her to North Carolina, making two stops
along the way. She was eventually able to call 911. Police
attempted to stop the car, but Seth refused to pull over for
15 or 20 minutes. He eventually stopped and was arrested.
the car chase, M.S. called Jimmie Harper, Seth's best
friend and Mr. Radcliffe's co-conspirator in the witness
tampering scheme. The call was made at Seth's request.
Mr. Harper informed Mr. Radcliffe of the incident, using his
sister as an intermediary because his sister was related to
the Radcliffes by marriage. M.S. spoke with Mr. Harper again
that evening and told him what happened. Mr. Radcliffe called
Mr. Harper later that night, and Mr. Harper testified that
they discussed the situation and the need to speak with and
attempt to influence M.S. before she gave any statements or
testimony. Mr. Harper spoke with M.S. the next morning and
she described more details of the kidnapping. Mr. Harper
called Mr. Radcliffe shortly after speaking with M.S. The
three continued to exchange telephone calls and text messages
on December 24, 2015, and throughout the course of the next
several days and weeks, with Mr. Harper acting as the primary
point of contact with M.S. Mr. Harper testified that he and
Mr. Radcliffe planned and discussed what he would say to M.S.
to convince her to tell police that she went with Seth
willingly and to convince her to skip a preliminary hearing.
Radcliffe also spoke with Seth. After M.S. received a grand
jury subpoena, the three formulated a plan for Seth to write
a letter detailing his version of events, which Mr. Radcliffe
collected from Seth, passed to Mr. Harper, and Mr. Harper
reviewed with M.S. so that she could offer testimony to the
grand jury consistent with the letter. He also offered her
guidance on how to avoid saying anything that could be
damaging to Seth and emphasized that she should not say that
Seth forced her to go with him.
records established the timing of the communications, and
some calls occurring while Seth was in jail were recorded.
The evidence as to the content of the communications between
Mr. Radcliffe and Mr. Harper was limited to the testimony of
Mr. Harper and that of Mr. Radcliffe. Mr. Harper contended
that he and Mr. Radcliffe were conspiring to convince M.S. to
give false testimony. Mr. Radcliffe testified that he
believed the version of events set forth in Seth's letter
was accurate-that M.S. had willingly gone with Seth and there
was no kidnapping.
Harper had serious credibility issues, which were explored on
cross-examination during the trial. He had pled guilty to
witness tampering and hoped that testifying against Mr.
Radcliffe would result in a reduced sentence. He admitted to
a history of lying. He had also committed arson and operated
a synthetic marijuana business.
the jury returned its verdict, Mr. Radcliffe filed a motion
for a new trial alleging that Mr. Harper had given false
testimony. He claimed that Mr. Harper's sister indicated
that Mr. Harper had told her that he intended to lie at
trial. The Court ordered that Mr. Harper's recorded jail
telephone calls be provided to Mr. Radcliffe and his attorney
for review, but no call with the alleged admission of an
intent to give false testimony was found. Mr. Radcliffe then
contended that the conversation may have taken place during a
jail visit, and so the Court held a hearing. Mr.
Radcliffe's wife, Angela Radcliffe, testified that Mr.
Harper's sister, Kimberly Morgan, had called her during
trial and told her that Harper said he would lose his plea
deal if he told the truth during his testimony. Ms. Morgan
testified that she had made no such statement and believed
that Mr. Harper testified truthfully. She stated that she had
told Ms. Radcliffe that she was hurt by Mr. Harper's
prior lies to her about his criminal conduct, and that Mr.
Harper did not want to testify, but had no choice under the
terms of his plea agreement. The Court denied the motion for
a new trial, finding no admissible evidence that Mr. Harper
had expressed an intention to give false testimony.
Radcliffe filed a direct appeal, but voluntarily dismissed it