Barker v. Keeley, Civil Action 3:20-00202

• Decision Date: 19 November 2020
• Docket Number: Civil Action 3:20-00202
• Court: U.S. District Court — Northern District of West Virginia
• Parties: ERIC SCOTT BARKER, Plaintiff, v. IRENE KEELEY, et al., Defendants.

ERIC SCOTT BARKER, Plaintiff, v. IRENE KEELEY, et al., Defendants.

Civil Action No. 3:20-00202

United States District Court, N.D. West Virginia, Martinsburg Division

November 19, 2020

PROPOSED FINDINGS AND RECOMMENDATION

OMAR J. ABOULHOSN, UNITED STATES MAGISTRATE JUDGE

On October 19, 2020, Plaintiff, acting pro se, filed his Complaint in this matter claiming entitlement to relief for alleged violations of his constitutional rights pursuant to Bivens v. Six Unknown Named Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Document No. 1.) By Order entered on November 5, 2020, the above action was designated and assigned to the Honorable Thomas E. Johnston, Chief United States District Judge for the Southern District of West Virginia. (Document No. 6.) By Order entered on November 6 2020, this matter was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 7.)

FACTUAL AND PROCEDURAL HISTORY

A. Criminal Action No. 1:13-00018:

On July 8, 2013, Plaintiff pled guilty in the Northern District of West Virginia to one count of aiding and abetting the possession with intent to distribute heroin (Count Two) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.SC. § 2. (Criminal Action No. 1:13-00018, Document Nos. 55, 56, 77, 82.) The District Court sentenced Plaintiff on October 22, 2013, to serve a 151-month term of imprisonment to run consecutive to the term of imprisonment imposed in Case Number 1:04-cr-86, to be followed by a three-year term of supervised release. (Id., Document No. 104.) The District Court also imposed a $100 special assessment. (Id.)

On October 23, 2013, Plaintiff, by counsel, filed a Notice of Appeal. (Id., Document No. 112.) In his appeal, Plaintiff argued that the District Court erred in denying his motion to suppress evidence obtained during a search of his residence in violation of his Fourth Amendment rights. On January 13, 2015, the Fourth Circuit Court of Appeals vacated Plaintiff's judgment and remanded the case to the District Court “to determine whether the information gained from the illegal walk-through and dog sniff affected Officer's Root's decision to seek a warrant.” Id., Document No. 45. By Order entered on May 11, 2015, the District Court granted the United States' Motion to Dismiss Superseding Indictment. (Id., Document No. 158.)

B. Criminal Action No. 1:16-00031:

On June 30, 2017, Plaintiff pled guilty in the Northern District of West Virginia to one count of attempted possession with intent to distribute para-flurorofentanyl, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.SC. § 846 (Count 17). (Criminal Action No. 1:16-0031, Document Nos. 202, 204, 205, 207.) A Presentence Investigation Report was prepared. (Id., Document No. 221.) The District Court sentenced Plaintiff on August 21, 2017, to serve a 120-month term of imprisonment, to be followed by a three-year term of supervised release. (Id., Document No. 222.) The District Court also imposed a $100 special assessment. (Id.) It was further ordered that Plaintiff forfeit his interest in the following property to the United States: “The Court adopts, by reference the Preliminary Order of Forfeiture, filed on August 9, 2017 at Docket Number 219, except the Court reduces the total money judgment amount to $148, 037.00 to account for the total funds already seized by the United States.” (Id.) On August 1, 2018, the District Court entered its Final Order of Forfeiture concerning the following property: (1) A 2007 Mercedes sedan with Florida registration GHIM82; (2) $22, 408.00 in U.S. currency seized on March 22, 2016; and (3) Funds held in Plaintiff's North Central Regional Jail commissary account (totaling approximately $2, 555). (Id., Document No. 252.) Subsequently, the United States filed a Motion to Amend or Correct the Final Forfeiture Order. (Id., Document No. 263.) By Order entered on April 5, 2019, the District Court granted the United States' Motion and Amended the Final Forfeiture Order to include $317.05 in Plaintiff's BOP Trust Fund Account. (Id., Document No. 264.) The District Court determined that “[t]he United States Postal Inspection Service (“USPIS”) cannot locate all property subject to forfeiture in this case because the defendant has dissipated substantial proceeds of the offense or has hidden such property well enough that it cannot be located by the USPIS upon the exercise of due diligence.” (Id.)

On April 29, 2019, Plaintiff filed his Objections to the United States' Motion to Amend or Correct the Final Forfeiture Order and a Motion for Correction of Sentence. (Id., Document Nos. 265 and 266.) In his Motion for Correction of Sentence, Plaintiff requests that the Court enter “an order correcting the sentence by striking the Final Order of Forfeiture (Doc 252).” (Id., Document No. 265.) In support, Plaintiff stated that the indictment only gave notice that “upon obtaining a conviction with respect to a MAM-2201 distribution offense charged in the indictment” would the Government be authorized to seek forfeiture.” (Id.) Plaintiff argued that “as a result of the pleaagreement” he was “not convicted of any offense with respect to a MAM-2201 distribution offense.” (Id.) On June 6, 2019, Plaintiff filed a Supplemental Brief in Support of his Motion to Correct Sentence. (Id., Document No. 268.)

On July 7, 2019, Plaintiff, acting pro se, filed his “Motion to Vacate Set Aside Or Correct Sentence Pursuant to 28 U.S.C. § 2255.” (Id., Document No. 269.) Citing United States v. Whiteside, 748 F.3d 541 (4^th Cir. 2014), Plaintiff argues that he no longer qualifies as a career offender. (Id.) On July 19, 2019, Plaintiff filed his Section 2255 Motion on a Court approved form. (Id., Document No. 273.) As grounds for habeas relief, Plaintiff alleged as follows:

Ground One: I was sentenced erroneously as a career offender. Due to the fact recent case law has determined that “attempt” offenses are not career-able. I would like to be resentenced without the career offender enhancement.

Ground Two: Ineffective Assistance of Counsel - Attorney Deception. I was led to believe that a 120-month sentence was reasonable because of my career offender status. However, the Supreme Court has held that Application Notes do not allow the Sentencing Commission or Judges to add offenses to the enumerated offenses in USSG 4B1.1. I would like to be resentenced without the career offender enhancement.

Ground Three: Based on newly discovered evidence, fentanyl analogues can trigger false positive for scheduled substance and, indeed, this is not uncommon. I request the conviction overturned for a fundamental miscarriage of justice - actual innocence.

On August 2, 2019, the Court issued a “Hill v. Braxton Notice” warning Plaintiff that his Section 2255 Motion “will be dismissed as untimely unless he can demonstrate that the one-year statute of limitation does not bar his motion.” (Id., Document No. 274.) On August 26, 2019, Plaintiff filed his Response to the “Hill v. Braxton Notice.” (Id., Document No. 276.) On September 4, 2019, Plaintiff filed a Motion for Citation of Supplemental Authorities Concerning Equitable Tolling. (Id., Document No. 277.)

On September 26, 2019, Plaintiff filed his Motion for Ruling on the Pleadings for the Objections to and Correction of the Forfeiture Order. (Id., Document No. 278.) By Order entered on September 30, 2019, the District Court directed the United States to Respond to Plaintiff's Motion for Correction of Sentence. (Id., Document No. 279.) On October 10, 2019, the United States filed its Response arguing as follows: (1) “The Defendant waived the right to appeal the forfeiture;” and (2) “The Defendant lacks standing to appeal the Final Order of Forfeiture.” (Id., Document No. 281.) On October 25, 2019, Plaintiff filed his Objections. (Id., Document No. 282.)

On September 1, 2019, Plaintiff filed his Motion to Expedite the Ruling on the Pleadings regarding his Section 2255 Motion. (Id., Document No. 283.) On November 18, 2019, Plaintiff filed his Memorandum in Support of the Actual Innocence Exception in support of his Section 2255 Motion. (Id., Document No. 285.) On January 31, 2020, Plaintiff filed his “Memorandum of Fact and Law in Support of Supplemental 28 U.S.C. § 2255 Motion to Compel the Court that Equitable Tolling should be Granted” (Document No. 287) and “Memorandum of Fact and Law in Support of Ineffective Assistance of Counsel Claim” (Document No. 288). On February 21, 2020, Plaintiff filed his “Supplemental Motion to Show Cause To Excuse Procedural Default Pursuant to Hill v. Braxton” (Document No. 291) and “Motion to Strike and Reissue the Final Forfeiture Order and the Amended Preliminary Order” (Document No. 292). On February 28, 2020, Plaintiff filed his Motion to Correct Presentence Report Pursuant to Fed. R. Crim. P. 36. (Id., Document No. 294.) On March 6, 2020, Plaintiff filed his Motion for Evidentiary Hearing in Support of the Motion for Correction of the Record Pursuant to Fed. R. Crim. P. 36. (Id., Document No. 295.)

On March 19, 2020, the United States Marshals Service filed its Process Receipt and Return as to Final Order of Forfeiture. (Id., Document No. 296.) On April 30, 2020 Plaintiff filed his Supplemental Authority in Support of his Motion to Correct the Presentence Report (Document No. 297), Motion to Stay Pending 2255 Pending Rule on the Motion to Correct the Presentence Report (Document No. 298), and Motion for Transcripts of Plea and Sentencing Hearings (Document No. 299). By Order entered on May 1, 2020, the...