Adkins v. USA
Filing
19
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 14 AND DISMISSING PETITION FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 DKT. NO. 1 ; The Court ADOPTS the R&R Dkt. No. 14 ; OVERRULES Adkinss objections Dkt. No. 17 ; DENIES Adkinss § 2255 Petition Dkt. No. 1 ; DENIES as moot Adkinss motion to submit medical records Dkt. No. 18 ; and ORDERS that this case be DISMISSED with prejudice and STRICKEN from the docket of this Court. Court concludes that Adkins has failed to make the requisite showing, and DENIES a certificate of appealability. Court DIRECTS the Clerk to to enter a separate judgment order, and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 12/19/2016. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 12/19/2016: # 1 Certified Mail Return Receipt) (jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHARLES ADKINS,
Petitioner,
v.
CIVIL ACTION NO. 1:16CV209
CRIMINAL ACTION NO. 1:13CR17
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
Now pending before the Court is the motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence, which was filed by
petitioner Charles Adkins (“Adkins”) on November 2, 2016 (Dkt. No.
1). Pursuant to the local rules, the petition was referred to the
Honorable James E. Seibert, United States Magistrate Judge, for
initial review. On November 21, 2016, Adkins filed his petition on
the Court-approved form (Dkt. No. 7). Thereafter, on December 5,
2016, he moved for the appointment of counsel and asked that the
Court schedule oral argument for his case (Dkt. Nos. 10; 11). Both
motions were denied on December 6, 2016 (Dkt. Nos. 12; 13). On
December 7, 2016, Magistrate Judge Seibert filed a Report and
Recommendation (“R&R”) in which he recommends that the petition be
denied and dismissed as untimely (Dkt. No. 14). Adkins filed his
objections to the R&R on December 14, 2016 (Dkt. No. 17).
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
BACKGROUND
On August 8, 2014, pursuant to a written plea agreement,
Adkins pleaded guilty to Counts One and Two of a ten-count fourth
superseding indictment filed against him (Crim. No. 1:13cr17, Dkt.
No. 268). That same day, the Court sentenced Adkins to 51 months of
imprisonment to be followed by 3 years of supervised release. Id.
Thereafter, Adkins appealed the judgment, but the Court of Appeals
for the Fourth Circuit dismissed the appeal on June 30, 2015,
finding that it fell “squarely within the compass of his waiver of
appellate rights” (Crim. No. 1:13cr17, Dkt. No. 317). The Supreme
Court of the United States denied his petition for a writ of
certiorari on October 5, 2015.
In the pending petition, filed on November 2, 2016, Adkins
asserts several grounds for relief (Dkt. No. 7). He first claims to
have legal documentation that supports his innocence. Id. at 5. He
also
argues
that
both
his
trial
and
appellate
counsel
were
ineffective by failing to provide him with full discovery, refusing
to present legal documents that would prove his innocence, and, in
the case of appellate counsel, not pursuing a claim of ineffective
assistance of trial counsel. Id. at 6-10. He asserts that the
2
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
petition is timely and asks that the Court vacate Count One of the
indictment. Id. at 13.
STANDARD OF REVIEW
When reviewing a magistrate judge’s R&R made pursuant to 28
U.S.C. § 636, the Court must review de novo only the portion of the
R&R to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C).
On the other hand, “the Court may adopt, without explanation, any
of the magistrate judge’s recommendations to which the prisoner
does not object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600,
603-04 (N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199
(4th
Cir.
1983)).
Courts
will
uphold
those
portions
of
a
recommendation as to which no objection has been made unless they
are “clearly erroneous.” See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
APPLICABLE LAW
Under 28 U.S.C. § 2255(a), a prisoner may move the sentencing
court “to vacate, set aside or correct” his sentence if he claims
it “was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.”
3
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
However, Congress has established a one-year limitation period in
which such a motion may be filed. The one-year period runs from the
latest of the following:
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review;
or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Therefore, unless the special circumstances of
Subsections (2)-(4) apply, a petitioner must typically file a
motion pursuant to § 2255 within one year from “the date on which
the judgment of conviction becomes final.” A conviction becomes
final on the date when a prisoner fails to pursue further direct
appellate review. United States v. Sanders, 247 F.3d 139, 142 (4th
Cir. 2001). The one-year period may be equitably tolled “only if [a
prisoner]
shows
(1)
that
he
has
4
been
pursuing
his
rights
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
diligently, and (2) some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010) (internal quotation marks omitted); United States v.
Sosa, 364 F.3d 507, 512 (4th Cir. 2004).
DISCUSSION
Because Adkins has objected to the R&R’s conclusion that his
petition must be dismissed as untimely, the Court’s review is de
novo. See 28 U.S.C. § 636(b)(1)(C). Adkins’s conviction became
final on October 5, 2015, when the Supreme Court denied his
petition for a writ of certiorari. Therefore, absent special
circumstances, he was required to file the instant motion within
one year, by October 5, 2016. Adkins did not file his petition
until November 2, 2016, over one year after his conviction became
final, and the R&R thus concludes that the petition must be denied
and dismissed as untimely (Dkt. No. 14 at 4-5).
When Magistrate Judge Seibert filed his R&R, the government
had not filed a motion to dismiss the petition as untimely.
Therefore, the R&R properly warned Adkins that his petition would
likely be dismissed absent his ability to demonstrate that it is
timely under § 2255(f) or that the principles of equitable tolling
5
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
apply to his case. Id. at 4; see also Sosa, 364 F.3d 507; Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002).
In his timely objections to the R&R, Adkins reiterates the
claims of his petition, and he asks the Court to “consider [the
petition] reasonable and acceptable on the time frame [he] used”
(Dkt. No. 17 at 3). In support, he cites ongoing medical issues
with his left foot and right hand, his poor vision, and the
difficulty of accessing legal documents while incarcerated. Id. at
1-2. Adkins notes that these conditions “made it difficult to
prepare a 2255 motion, not that it was impossible to do just very
time consuming.” Id. at 1.
After a careful review of the record, the Court finds that
Adkins has failed to demonstrate the applicability of § 2255(f)(2)(4). Moreover, he is not entitled to the application of equitable
tolling,
as
there
are
no
“extraordinary
circumstances”
that
prevented him from timely filing his petition. See Holland, 560
U.S. at 649. Therefore, because Adkins filed his petition more than
one year after his conviction became final, it must be denied and
dismissed as untimely.
CONCLUSION
6
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
In conclusion, for the reasons discussed, the Court:
1.
ADOPTS the R&R (Dkt. No. 14);
2.
OVERRULES Adkins’s objections (Dkt. No. 17);
3.
DENIES Adkins’s § 2255 Petition (Dkt. No. 1);
4.
DENIES as moot Adkins’s motion to submit medical records
(Dkt. No. 18); and
5.
ORDERS that this case be DISMISSED with prejudice and
STRICKEN from the docket of this Court.
It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant
to
Rule
11(a)
of
the
Rules
Governing
§
2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such a case. If the court denies the certificate, “a
party may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of 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
Adkins
has
not
made
a
“substantial showing of the denial of a constitutional right.” See
7
ADKINS V. USA
1:16CV209
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 14] AND DISMISSING PETITION FOR
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
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 Adkins has failed to make the requisite
showing, and DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se petitioner, certified mail,
return receipt requested, to enter a separate judgment order, and
to remove this case from the Court’s active docket.
DATED: December 19, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
8
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