Adkins v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION DKT. NO. 5 AND DISMISSING PETITION FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2255 DKT. NO. 1 . The Court ADOPTS the R&R Dkt. No. 5 ; OVERRULES Adkinss objections Dkt. Nos. 7 ; 8 ) and DENIES the Pe tition Dkt. No. 1 and DISMISSES this case WITHOUT PREJUDICE to Adkinss right to seek authorization from the Fourth Circuit pursuant to 28 U.S.C. § 2255(h). It is so ORDERED. Court DENIES a certificate of appealability. The Court DIRECTS the Cl erk enter a separate judgment order, and to remove this case from the Courts active docket. Signed by District Judge Irene M. Keeley on 8/7/2017. (copy pro se petitioner via certified mail)(jmm) (Additional attachment(s) added on 8/7/2017: # 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. 1:17cv113
CRIMINAL ACTION NO. 1:13cr17
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 5] AND DISMISSING PETITION FOR HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
On June 27, 2017, the petitioner, Charles Adkins (“Adkins”),
filed his second motion pursuant to 28 U.S.C. § 2255 to vacate, set
aside, or correct sentence (“Petition”) (Dkt. No. 1). In 2014,
Adkins pleaded guilty to one count of failing to update his sex
offender registration, in violation of 18 U.S.C. § 2250(a), and one
count of conspiring to attempt to obstruct justice, in violation of
18 U.S.C. § 1512(k) (Crim. No. 1:13cr17, Dkt. No. 265). Adkins now
argues,

among

supporting

his

other

things,

innocence,

that

that

he

the

has

legal

Government

documentation
used

improper

evidence, and that his attorneys provided ineffective assistance
(Dkt. No. 1 at 5-10). Pursuant to 28 U.S.C. § 636 and the local
rules, the Court referred the Petition to the Honorable Michael J.
Aloi, United States Magistrate Judge, for initial review.
On July 11, 2017, Magistrate Judge Aloi filed a Report and
Recommendation (“R&R”) recommending that the Petition be denied
(Dkt. No. 5), noting that Adkins previously had filed a § 2255

ADKINS V. USA

1:17CV113

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 5] AND DISMISSING PETITION FOR HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
motion that was dismissed as untimely (Civ. No. 1:16cv209). Second
or successive motions such as the instant Petition must first be
certified by a court of appeals to contain newly discovered evidence
or a new rule of constitutional law. 28 U.S.C. § 2255(h). Because
Adkins failed to obtain such authorization from the Fourth Circuit
before filing his motion, Magistrate Judge Aloi concluded that the
Court lacked authority to entertain his Petition, and accordingly
recommended its dismissal (Dkt. No. 5 at 4-5). See United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003).

The R&R also informed Adkins of his right to file “written
objections identifying the portions of the recommendation to which
objections are made and the basis for such objections” (Dkt. No. 5
at 5). Adkins filed timely objections on July 19, 2017 (Dkt. No. 7).1
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions 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.

1

Adkins also filed a “Pro Se Memorandum” on July 28, 2017,
which the Court considered along with his objections (Dkt. No. 8).
2

ADKINS V. USA

1:17CV113

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 5] AND DISMISSING PETITION FOR HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation 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).
Vague objections to an R&R distract a district court from
“focusing on disputed issues” and defeat the purpose of an initial
screening by the magistrate judge. McPherson v. Astrue, 605 F. Supp.
2d 744, 749 (S.D.W. Va. 2009) (citing Howard’s Yellow Cabs, Inc. v.
United States, 987 F. Supp. 469, 474 (W.D.N.C. 1997)). Failure to
raise specific errors waives the claimant’s right to a de novo
review because “general and conclusory” objections do not warrant
such review. Id. (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir. 1982); Howard’s Yellow Cabs, 987 F. Supp. at 474); see also
Green v. Rubenstein, 644 F. Supp. 2d 723 (S.D.W. Va. 2009). Indeed,
failure to file specific objections waives appellate review of both
factual and legal questions. See United States v. Schronce, 727 F.2d
91, 94 & n.4 (4th Cir. 1984); see also Moore v. United States, 950
F.2d 656, 659 (10th Cir. 1991).
Here, Adkins’s objections fail to identify any specific errors
in Magistrate Judge Aloi’s findings, and, in fact, contain only
passing reference to the R&R (Dkt. Nos. 7; 8). Rather, Adkins
3

ADKINS V. USA

1:17CV113

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 5] AND DISMISSING PETITION FOR HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
reiterates the arguments in his Petition, asking the Court to “look
beyond the time frame on filing the 2255” (Dkt. No. 7 at 3). These
reiterations and general contentions, all of which were fully and
fairly addressed in the R&R, place the Court under no obligation to
conduct a de novo review. Diamond, 414 F.3d at 315. Therefore, upon
review of the R&R and the record for clear error, it adopts the
opinion of the Magistrate Judge for the reasons discussed in the R&R
(Dkt. No. 5).
In conclusion, the Court:
1.

ADOPTS the R&R (Dkt. No. 5);

2.

OVERRULES Adkins’s objections (Dkt. Nos. 7; 8); and

3.

DENIES the Petition (Dkt. No. 1) and DISMISSES this case
WITHOUT PREJUDICE to Adkins’s right to seek authorization
from the Fourth Circuit pursuant to 28 U.S.C. § 2255(h).

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
4

ADKINS V. USA

1:17CV113

ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 5] AND DISMISSING PETITION FOR HABEAS
CORPUS PURSUANT TO 28 U.S.C. § 2255 [DKT. NO. 1]
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
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: August 7, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

5