Barefield v. United States of America

Filing 555

MEMORANDUM OPINION AND ORDER: adopting 552 Proposed Findings and Recommendations; denying 540 & 544 MOTIONS to Vacate, Set Aside or Correct Sentence (2255); denying certificate of appealability. Signed by Judge Joseph R. Goodwin on 12/18/2009. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION CORTEZ L. BAREFIELD, Petitioner, v. UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION & ORDER Pending before the court is a Motion by the petitioner to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Dockets 540 & 544]. This matter was referred to the Honorable Mary E. Stanley, United States Magistrate Judge, for submission to this court of proposed findings of fact and recommendation ("PF&R") for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge has submitted findings of fact and recommended that the court deny the petitioner's Motion and dismiss this matter from the docket. The petitioner timely filed written objections to the Magistrate Judge's findings of fact and recommendation. Having reviewed the petitioner's objections de novo, the court FINDS that they ultimately are without merit. The petitioner argues that his indictment should have "state[d] the statutory language" from 21 U.S.C. 841(b)(1)(A)(ii). (Obj. 2.) But the petitioner "has no authority for that proposition, and the [c]ourt is aware of none. . . . The [c]ourt finds that the elements of the offense under 21 U.S.C. §§ 841(a)(1) and 846 are set forth in the indictment in this case." Collins v. United States, 2006 WL 858975, at *5 (D.S.D. 2006) (upholding an indictment against an analogous CRIMINAL ACTION NO. 2:06-cr-00055-02 CIVIL ACTION NO. 2:08-cv-946

challenge). The court agrees with and adopts the thorough analysis of the Magistrate Judge. The court DENIES the petitioner's Motion [Dockets 540 & 544]. The court has additionally considered whether to grant a certificate of appealability. See 28 U.S.C. § 2253(c). A certificate will not be granted unless there is "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). The standard is satisfied only upon a showing that reasonable jurists would find that any assessment of the constitutional claims by this court is debatable or wrong and that any dispositive procedural ruling is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). The court concludes that the governing standard is not satisfied in this instance. Accordingly, the court DENIES a certificate of appealability. The Clerk is DIRECTED to forward copies of this written opinion and order to all counsel of record and any unrepresented parties.

ENTER:

December 18, 2009

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