Henning v. USA

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 21 . Court ADOPTS the R&R in its entirety (dkt. no. 21) and ORDERS that this case be DISMISSED WITH PREJUDICE and stricken from the Courts active docket. Court concludes that Henning has failed to ma ke the requisite showing, and DENIES a certificate of appealability. Court directs the Clerk of Court to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 7/18/2017. (copy counsel of record, pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 7/18/2017: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DARIUS HENNING,
Petitioner,
v.

//

CIVIL ACTION NO. 1:16CV146
CRIMINAL ACTION NO. 1:15CR29
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21]
On June 30, 2016, the pro se petitioner, Darius Jordan Henning
(“Henning”), filed a motion to vacate pursuant to 28 U.S.C. §§
2255, which the Court referred to United States Magistrate Judge
Robert

W.

Trumble

for

initial

screening

and

a

Report

and

Recommendation (“R&R”) in accordance with LR PL P 2.
On June 23, 2017, Magistrate Judge Trumble issued an R&R, in
which he recommended that the Court dismiss the petition because
all three of Henning’s ineffective assistance of counsel claims
were meritless (dkt. no. 21). First, the R&R concluded that trial
counsel was not ineffective for failing to advise him that the
would

be

subject

to

a

two-point

sentencing

enhancement

for

possession of a stolen firearm because Henning had, on at least two
occasions, been informed in open court that the enhancement would
apply. Id. at 8-9. Next, it found that trial counsel was not
ineffective for failing to seek a plea agreement because Henning
had in fact been tendered a plea agreement, which he rejected. Id.
at

9

Finally,

the

R&R

concluded

that

trial

counsel

was

not

HENNING

V. UNITED STATES

1:16CV146

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21]
ineffective for failing to seek a downward variance at sentencing
based on Henning’s psychological problems. Id. at 10. The R&R noted
that,

other

than

Henning’s

bald

assertion

of

extensive

psychological problems, never raised prior to the instant § 2255
petition, there was simply no evidence in the record that would
have supported such a request by trial counsel. Id.
The R&R also specifically warned Henning that his failure to
object to the recommendation would result in the waiver of any
appellate rights he might otherwise have on this issue. Id. at 11.
The parties did not file any objections.1

Consequently, finding no

clear error, the Court ADOPTS the R&R in its entirety (dkt. no. 21)
and ORDERS that this case be DISMISSED WITH PREJUDICE and stricken
from the Court’s active docket.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to

the

applicant”

in

such

cases.

If

the

court

denies

the

certificate, “the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of
1

The failure to object to the Report and Recommendation not only
waives the appellate rights in this matter, but also relieves the
Court of any obligation to conduct a de novo review of the issue
presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells
v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997).
2

HENNING

V. UNITED STATES

1:16CV146

ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 21]
Appellate Procedure 22.” 28 U.S.C. foll. § 2255(a). The Court finds
it inappropriate to issue a certificate of appealability in this
matter because Henning has not made a “substantial showing of the
denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by

the

district

court

is

debatable

or

wrong,

and

that

any

dispositive procedural ruling by the district court is likewise
debatable. See Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the record, the Court concludes that Henning has
failed to make the requisite showing, and DENIES a certificate of
appealability.
It is so ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record and to the pro se petitioner,
certified mail, return receipt requested.
Dated: July 18, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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