Curry v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION re 6 Report and Recommendations for on 1 Motion to Vacate, Set Aside or Correct Sentence (2255). The Petitioners Objections are OVERRULED. The Court ORDERS that the Petitioners motion under 28 U.S.C. & #167; 2255 [ECF No. 1 in 3:15-CV-66; ECF No. 951 in 3:02-CR-35-1] is DENIED and DISMISSED WITH PREJUDICE. This matter is ORDERED STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter a separate judgment order in favor of the Respondent. Signed by Chief Judge Gina M. Groh on 1/11/16. copy mailed to pro se pet via cert. return rec't mail(njz) (Additional attachment(s) added on 1/12/2016: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
ANTHONY CURRY,
a/k/a “Ace,”
Petitioner,
v.

CIVIL ACTION NO.: 3:15-CV-66
CRIMINAL ACTION NO.: 3:02-CR-35-1
(GROH)

UNITED STATES OF AMERICA,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) [ECF No. 957] of United States Magistrate Judge
John S. Kaull.1 Pursuant to this Court’s Local Rules, this action was referred to Magistrate
Judge Kaull for submission of an R&R. Magistrate Judge Kaull issued his R&R on June
26, 2015. In the R&R, he recommends that the Petitioner’s motion under 28 U.S.C. § 2255
[ECF No. 951] be denied and dismissed with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to conduct a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). Failure to file timely objections constitutes a waiver of de novo review and of a

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References to CM/ECF docket numbers herein refer to Criminal Action No. 3:02-CR-35.

plaintiff’s right to appeal a court’s order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.
1984). When a party files objections, “but these objections are so general or conclusory
that they fail to direct the district court to any specific error by the magistrate judge, de novo
review is unnecessary.” Green v. Rubenstein, 644 F. Supp. 2d 723, 730 (S.D. W. Va.
2009) (citing Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
Objections to Magistrate Judge Kaull’s R&R were due within fourteen plus three
days of the Petitioner being served with a copy of the same. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). Service was accepted at the Federal Correctional Institution, Cumberland,
on June 29, 2015. Thereafter, the Petitioner timely filed his objections [ECF No. 964],2
which the Court received on July 20, 2015. Accordingly, this matter is now ripe for review.
In the R&R, the magistrate judge recommends that this Court deny and dismiss as
untimely the Petitioner’s motion under 28 U.S.C. § 2255. Before dismissing a prisoner’s
motion as untimely, “a court must accord the parties fair notice and an opportunity to
present their positions.” Day v. McDonough, 547 U.S. 198, 210 (2006). Additionally, a
court should consider the prejudice to the movant and whether the interests of justice would
be better served by addressing the motion on the merits. Id. Notice to, and input from, a
prisoner is particularly important when the prisoner is proceeding pro se. See Hill v.
Braxton, 277 F.3d 701, 707 (4th Cir. 2002). In the instant case, the magistrate judge
referenced these principles but ultimately concluded that the Petitioner’s motion should be

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Pursuant to the “prison mailbox rule,” the date an inmate delivers a document to prison officials for
forwarding to the clerk of court is considered to be the date of filing. Houston v. Lack, 487 U.S. 266, 276
(1988).

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dismissed without notice to the Petitioner, as it is “indisputably clear” that the motion is
untimely and “cannot be salvaged” by equitable tolling principles. Id. This Court concurs
with the magistrate judge’s conclusion and notes, in addition, that the Petitioner
demonstrated his understanding of the time limitation set forth in 28 U.S.C. § 2255(f) in the
form motion he submitted in June 2015, wherein he asserted that his motion was timely
under § 2255(f)(4) because he only recently became aware of the fraudulent nature of his
plea agreement. In making his recommendation to this Court, the magistrate judge found
that the Petitioner’s § 2255 motion was untimely and that the Petitioner’s reliance on
caselaw concerning fraud and conflicts of interest was misplaced. The magistrate judge
rejected the Petitioner’s contention that an October 14, 2014 memorandum authored by
former Attorney General Eric Holder might serve to excuse the untimeliness of the
Petitioner’s § 2255 motion.
In his objections to the R&R, the Petitioner provides two substantive averments.
First, the Petitioner states that he “would like to move this Honorable Court that his plea
agreement/contract is void, therefore, making it clear that the statute of limitation is not
warrant in this case.” Second, he asserts that “[t]he AUSA committed fraud and fraud voids
all contracts.” Apart from these two statements, the Petitioner’s objections are devoid of
any other factual enhancement.

The Petitioner does not address the findings or

recommendation of the magistrate judge, other than to say that the R&R “is clear in error.”
This Court has carefully reviewed the R&R, the Petitioner’s filings and the entire
record in this case, and finds no clear error as to the portions of the R&R to which the
Petitioner did not object. The Court has considered, de novo, the timeliness of the
Petitioner’s motion, as well as the Petitioner’s contention that his plea agreement was the
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product of fraud and that he has only recently become aware of the fraudulent nature of his
agreement with the United States Attorney’s Office. Pursuant to 28 U.S.C. § 2255(f), the
one-year period of limitation that applies to motions under that section shall run from the
latest of the following four events:
(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.
Here, the Petitioner contends that the one-year period of limitation should not be
calculated from June 12, 2006, the date his judgment of conviction became final under
§ 2255(f)(1). Instead, he argues that under § 2255(f)(4) the one-year period should be
calculated from October 14, 2014, the date former Attorney General Eric Holder issued a
memorandum concerning collateral attack waivers in plea agreements.

Upon

consideration, this Court reaches the same conclusion as Magistrate Judge Kaull: former
Attorney General Holder’s memorandum did not establish new law or create new rights in
this circuit, and it did not constitute new facts previously undiscoverable to the Petitioner
through the exercise of due diligence. This Court finds that the Petitioner’s motion under
28 U.S.C. § 2255 is untimely and that the Petitioner’s arguments are each without merit.
Accordingly, the Court finds that Magistrate Judge Kaull’s Report and
Recommendation [ECF No. 6 in 3:15-CV-66; ECF No. 957 in 3:02-CR-35-1] should be, and
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is, hereby ORDERED ADOPTED for the reasons more fully stated therein. The Petitioner’s
Objections are OVERRULED. The Court ORDERS that the Petitioner’s motion under 28
U.S.C. § 2255 [ECF No. 1 in 3:15-CV-66; ECF No. 951 in 3:02-CR-35-1] is DENIED and
DISMISSED WITH PREJUDICE. This matter is ORDERED STRICKEN from the active
docket of this Court.
The Clerk is DIRECTED to enter a separate judgment order in favor of the
Respondent.
The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a
district court denies a petitioner’s claims on the merits, then “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
“If, on the other hand, the denial was procedural, the petitioner must show ‘that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.’” United States v. McRae, 793 F.3d 392, 397 (4th
Cir. 2015) (quoting Slack, 529 U.S. at 484). Here, upon a thorough review of the record,
the Court concludes that the Petitioner has not made the requisite showing.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record and
pro se parties.

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DATED: January 11, 2016

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