Harper v. United States of America
MEMORANDUM OPINION AND ORDER re: 129 Motion to Vacate, Set Aside or Correct Sentence (2255); adopting and incorporating the 158 Proposed Findings and Recommendation of the Magistrate Judge; directing that this action is dismissed. Signed by Judge John T. Copenhaver, Jr. on 8/12/2015. (cc: movant; counsel of record; United States Magistrate Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:12-04059
(Criminal No. 2:09-00179)
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
Pending is the movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255, filed August 6,
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636.
On August 5, 2009, the United States filed an
indictment charging the movant in three counts, respectively, as
follows: (1) Count One, distributing 50 grams or more of cocaine
base, in violation of 21 U.S.C. § 841(a)(1); (2) Count Two,
aiding and abetting the distribution of 5 grams or more of
cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2; and (3) Count Three, aiding and abetting the distribution
of 5 grams or more of cocaine base in violation of 21 U.S.C. §
841(a)(1) and 18 U.S.C. § 2.
On December 2, 2009, movant entered into a written
plea agreement to Count Three.
The Judgment imposed a custodial
sentence of 121 months followed by a three-year term of
The movant’s appeal of the Judgment was
United States v. Harper, 442 Fed. Appx. 857 (4th
Movant did not file a petition for a writ of
On July 22, 2015, the magistrate judge entered his
PF&R recommending that the section 2255 motion be denied.
August 3, 2015, movant objected.
In his objections, movant
first asserts that his constitutional rights were violated based
upon an element allegedly missing from the indictment.
appears to contend the indictment was vague and that he was
unjustly sentenced to the “harshest penalty phase without drug
type of penalty phase charged being proven or returned by Grand
(Objecs. at 2).
Movant is incorrect.
specific quantity of 5 grams of cocaine base was set forth in
Count Three, as reflected in both the indictment and the plea
There is no flaw in the charging instrument, and the
movant entered a knowing and voluntary plea of guilty to the
charge contained in Count Thee.
The objection is not
Second, movant asserts that he should not have been
sentenced based upon any quantity in excess of that contained in
the stipulation of facts accompanying the plea agreement,
namely, 7.27 grams.
The court, however, properly attributed
further drug quantities to the movant pursuant to the United
States Sentencing Guidelines.
The court of appeals affirmed
The objection is not meritorious.
Third, movant asserts that his counsel failed to
provide the court exculpatory evidence related to the misconduct
attributed to him while he was incarcerated.
The court of
appeals summarized the matter as follows:
[T]he district court heard multiple witnesses testify
about Harper's involvement in assaulting fellow
inmates while awaiting sentencing. A wheelchair-bound
diabetic, Kerney Thornsbury, and a West Virginia state
trooper testified that Harper served as the ringleader
and lookout as two other inmates assaulted Thornsbury
and took his commissary items. The district judge also
heard testimony from three other inmates detailing
incidents in which Harper had assaulted them. As a
result, the district court found that Harper had not
terminated his criminal conduct and was not deserving
of a downward adjustment for acceptance of
responsibility. We agree.
Harper, 442 Fed. Appx. at 860, 2011 WL 3585065, at *2.
contends that his counsel failed to call a nurse at the facility
who filled out a report stating that one victim denied he was
The referenced report notes that denial,
but the report also clearly reflects the victim’s complaint that
he was assaulted, with a listing of the accompanying physical
The movant’s objection is thus immaterial and not
Having considered the aforementioned objections and
the additional objections offered by movant, it is apparent that
the magistrate judge has arrived at the correct recommendation.
Based upon a de novo review, and having found the objections
without merit, the court adopts and incorporates herein the
magistrate judge’s PF&R.
The court, accordingly, ORDERS that
this action be, and it hereby is, dismissed.
The Clerk is directed to forward copies of this
written opinion and order to the movant, all counsel of record,
and the United States Magistrate Judge.
DATED: August 12, 2015
John T. Copenhaver, Jr.
United States District Judge
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