Jones v. USA
Filing
7
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE as to 5 Report and Recommendations. GRANTS as to 1 MOTION to Vacate, Set Aside or Correct Sentence (2255), filed by Kofie Akiem Jones. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr on 6/25/2012. (Copy counsel of record via CM/ECF, pro se petitioner via US mail)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOFIE AKIEM JONES,
Petitioner,
v.
Civil Action No. 1:12CV42
(Criminal Action No. 1:03CR47)
(STAMP)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Background
Following a three-day jury trial, the petitioner, Kofie Akiem
Jones, was found guilty of six criminal counts relating to his
participation in an armed bank robbery.
He was sentenced to
mandatory terms of concurrent life imprisonment on all six counts
as a three-strike offender pursuant to 18 U.S.C. § 3559(c)(1)(F).
His two prior qualifying offenses were a second-degree assault
conviction from December 6, 2001 and a robbery conviction from
April 3, 2006.
The petitioner filed a notice of appeal to the
United States Court of Appeals for the Fourth Circuit, and the
Fourth Circuit affirmed the judgment and sentence of this Court.
On February 6, 2006, the petitioner filed his first motion to
vacate, set aside, or correct his federal sentence pursuant to 28
U.S.C.
§
2255,
claiming
ineffective
assistance
violations of due process, and actual innocence.
of
counsel,
The motion was
denied by this Court, the petitioner appealed, and the Fourth
Circuit dismissed the appeal.
On March 10, 2011, the petitioner’s assault conviction was
vacated
by
the
State
of
Maryland.
On
April
26,
2011,
the
petitioner filed, pro se, a second motion to vacate, set aside, or
correct his federal sentence pursuant to § 2255, claiming that
resentencing was necessary because one of the prior convictions
used to enhance his sentence had been vacated.
The motion was
denied in error by this Court on June 10, 2011 based upon the
mistaken determination that it was second or successive.
On March 8, 2012, the petitioner filed the instant motion to
vacate, set aside, or correct his federal sentence pursuant to §
2255, reiterating the claim made in his 2011 habeas petition.
On
May 17, 2012, the respondent filed a response articulating its
belief that the petitioner is entitled to the relief that he seeks.
This matter was referred to United States Magistrate Judge
John S. Kaull for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 83.15.
Magistrate
Judge
Kaull
issued
a
report
and
recommendation
recommending that the petitioner’s § 2255 application be granted
and that this matter be scheduled for resentencing. The magistrate
judge informed the parties that if they objected to any portion of
the report, they must file written objections within fourteen (14)
days after being served with copies of the report.
filed objections.
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Neither party
II.
Applicable Law
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a
de
novo
review
of
any
portion
of
the
magistrate
recommendation to which objection is timely made.
judge’s
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
Supp. 825 (E.D. Cal. 1979).
See Webb v. Califano, 468 F.
Because the parties did not file any
objections, this Court reviews the report and recommendation for
clear error.
III.
Discussion
In the instant § 2255 motion, the petitioner argues that he
was
sentenced
as
a
three-strike
offender
under
18
U.S.C.
§
3559(c)(1)(F) and, pursuant to 18 U.S.C. § 3559(c)(7), he is
entitled to resentencing because one of his qualifying felony
convictions was found to be unconstitutional and was vitiated
explicitly based upon his innocence.
According to the petitioner,
18 U.S.C. § 3559(c)(7) entitles him to resentencing if “the
conviction for a serious violent felony or serious drug offense
that was a basis for sentencing under this subsection is found,
pursuant to any appropriate State or Federal procedure, to be
unconstitutional
innocence.”
circumstances.
or
is
vitiated
on
the
explicit
basis
of
The petitioner argues that his case fits these
In its response, the United States agrees that the
petitioner is entitled to be resentenced.
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In his report and recommendation, the magistrate judge first
addresses
the
timeliness
of
the
petitioner’s
§
2255
motion,
concluding that it was timely filed because it was filed within one
year
after
the
facts
supporting
the
claim
could
have
been
discovered through the exercise of due diligence. 28 U.S.C. §
2255(f)(4).
The magistrate judge found that the petitioner did
exercise due diligence in seeking the vacatur of his assault
conviction.
Next, the magistrate judge turns to the question of
whether the petitioner’s instant § 2255 motion qualifies as a
second
or
successive
petition
under
Effective Death Penalty Act of 1996.
previously
filed
two
habeas
the
Anti-Terrorism
and
Although the petitioner has
petitions,
the
magistrate
judge
determined that the instant petition is not second or successive.
The
2006
petition
alleged
ineffective
assistance
violations of due process, and actual innocence.
petition,
however,
alleges
that
the
of
counsel,
The instant
petitioner
should
be
resentenced based on the vacatur of his 2001 assault conviction.
With reference to the 2011 petition, the instant petition is not
second or successive because the 2011 petition was not dismissed on
the merits--it was incorrectly dismissed for being second or
successive.
Having reviewed the magistrate judge’s report and
recommendation
for
clear
error,
this
Court
agrees
that
the
petitioner’s § 2255 motion must be granted and that this matter
should be scheduled for resentencing.
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IV.
Conclusion
Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the ruling of the magistrate judge is hereby AFFIRMED
and ADOPTED in its entirety.
Accordingly, the petitioner’s motion
to vacate, set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255 is GRANTED. This matter shall be scheduled for resentencing
by a separate order of this Court.
It is further ORDERED that this
civil action be DISMISSED and STRICKEN from the active docket of
this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the petitioner has failed to
object, he has waived his right to seek appellate review of this
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
petitioner, to counsel of record herein, to the United States
Probation Office, and to the United States Marshals Service.
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DATED:
June 25, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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