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Radcliffe v. United States

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

November 12, 2019

MARK RADCLIFFE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGEK, UNITED STATES DISTRICT JUDGE.

         On 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. § 636.

         On 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.

         In 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.

         FACTS

         Magistrate 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.

         The 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.

         Mr. Radcliffe's charges arose from the arrest and prosecution of his son, Seth Radcliffe.[1]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.

         During 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.

         Mr. 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.

         Phone 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.

         Mr. 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.

         After 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.

         Mr. Radcliffe filed a direct appeal, but voluntarily dismissed it after ...


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