Barker v. United States

• Decision Date: 27 July 2022
• Docket Number: Civil Action 1:19CV134,Criminal Action 1:16CR31-1
• Parties: ERIC SCOTT BARKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of West Virginia

ERIC SCOTT BARKER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. 1:19CV134

Criminal Action No. 1:16CR31-1

United States District Court, N.D. West Virginia

July 27, 2022

MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S § 2255 PETITION, DISPOSING OF MOTIONS RELATED TO PETITIONER'S § 2255 PETITION, DENYING DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE, AND DISPOSING OF DEFENDANT'S PRO SE CRIMINAL MOTIONS

IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

The following pleadings have been filed by the petitioner, Eric Scott Barker (“Barker”), and are pending before the Court: (1) a pro se habeas petition pursuant to 28 U.S.C § 2255 seeking to vacate, set aside, or correct his sentence (Dkt. No. 269); (2) various motions relating to his § 2255 petition (Dkt. Nos. 277, 283, 298, 306, 315 343); (3) a pro se motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. No. 372); and (4) various pro se criminal motions (Dkt. Nos. 362, 366, 381 388).^[1] For the reasons that follow, the Court DENIES Barker's § 2255 petition (Dkt. No. 269), GRANTS IN PART and DENIES IN PART Barker's various motions relating to his § 2255 petition (Dkt. Nos. 277, 283, 298, 306, 315, 343), DENIES Barker's motion for compassionate release (Dkt. Nos. 372), and DENIES Barker's various pro se criminal motions (Dkt. Nos. 362, 366, 381, 388).

I. RELEVANT PORTIONS OF BARKER'S HISTORY OF LITIGATION BEFORE THE COURT

Before addressing Barker's pending petition and motions, it is helpful to review his lengthy history of litigation before this Court.^[2]

A. Criminal Actions Nos. 1:04CR68 and 1:04CR86

1. Barker's 18-Month Consecutive Sentence in Criminal Action No. 1:04CR68

Following transfer of supervision of Barker's heroin conspiracy conviction to this Court,^[3] the probation officer filed a 12C petition on September 24, 2004, seeking to revoke that supervision based on the following violations:

• Barker's arrest on September 23, 2004, for Domestic Battery; • The discovery of two bags of marijuana, a variety of pills, drug paraphernalia including a marijuana pipe, hypodermic needles, and a cooking spoon, and crack cocaine during a search incident to the domestic disturbance;

• Barker's failure to submit a written monthly report for August 2004; and

• Barker's failure to report two traffic stops by the Bridgeport Police Department.

Id. In that petition, the probation officer also noted that a firearm reportedly owned by Barker and a friend had been discharged during the domestic disturbance. Id.

On April 19, 2005, the probation officer amended the pending petition to report Barker's guilty plea in Criminal Action No. 1:04CR86 (Id., Dkt. No. 14). Following that, on April 25, 2005, the Court sentenced Barker to a term of 70 months of imprisonment in Criminal Action No 1:04CR86, and revoked his supervision in Criminal Action No. 1:04CR68, imposing a consecutive sentence of eighteen (18) months of imprisonment with no supervised release to follow. Id.

More than one year later, on November 8, 2006, Barker filed a § 2255 petition seeking to have his 18-month revocation sentence run concurrently with his 70-month sentence (Id., Dkt. No. 17). On November 29, 2006, he moved to amend that petition to add a claim of ineffective assistance of counsel based on his attorney's alleged failure to appeal his sentence in Criminal Action No. 1:04CR68 (Id., Dkt. No. 19). On December 8, 2006, the magistrate judge granted his motion to amend (Id., Dkt. No. 20).

On December 11, 2006, Barker again moved to amend his petition to assert that the applicable statute of limitations was subject to equitable tolling pursuant to 28 U.S.C. § 2255(f) (Id., Dkt. No. 22). The magistrate judge granted this motion and ordered the Government to answer the amended § 2255 petition (Id., Dkt. Nos. 23, 24).

Rather than answer, however, the Government moved to grant the § 2255 petition (id., Dkt. No. 45), and the Court resentenced Barker, thus permitting him to perfect his appeal in Criminal Action No. 1:04CR68 (Id., Dkt. Nos. 48, 51). But it again declined to run that revocation sentence concurrently with Barker's 70-month sentence in Criminal Action No. 1:04CR86 (Id., Dkt. No. 51). On appeal, the Fourth Circuit affirmed this Court's judgment on April 20, 2009 (Id., Dkt. No. 56).

On July 28, 2009, Barker filed another § 2255 petition in Criminal Action No. 1:04CR68, again challenging his consecutive sentence (Id., Dkt. Nos. 59, 60). On February 10, 2010, the magistrate judge recommended that the Court deny this petition as procedurally barred (Id., Dkt. No. 69). Barker objected and moved for judgment on the pleadings (Id., Dkt. Nos. 72, 76). On October 7, 2010, the Court adopted the magistrate judge's recommendation and denied Barker's § 2255 petition (Id., Dkt. No. 78).

2. Barker's 70-Month Sentence in Criminal Action No. 1:04CR86

On November 4, 2004, a grand jury indicted Barker on charges of Conspiracy to Distribute 5 Grams or more of a Mixture or Substance Containing Cocaine Base and less than 500 Grams of a Mixture or Substance Containing Cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii), (b)(1)(C) and 846; Aiding and Abetting in Possession with the Intent to Distribute 5 Grams or more of Cocaine Base and less than 500 Grams of Cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), (b)(1)(C) and 18 U.S.C. § 2; and Aiding and Abetting in Possession with the Intent to Distribute less than 5 Grams of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Criminal Action No. 1:04CR86, Dkt. No. 12).

Barker pleaded guilty to Aiding and Abetting in Possession with the Intent to Distribute 5 Grams or more of Cocaine Base and less than 500 Grams of Cocaine (id., Dkt. No. 30), and, on April 27, 2005, the Court sentenced him to seventy (70) months of imprisonment followed by four (4) years of supervised release (Id., Dkt. No. 42).^[4] That judgment also included a forfeiture of $3,109. Id. at 6.

Based on a later retroactive amendment to the United States Sentencing Guidelines, U.S.S.G. §§ 2D1.1(c)(8) and 1B1.10, on July 28, 2008, the Court reduced Barker's sentence of imprisonment to sixty (60) months (id., Dkt. No. 69), but did not reduce the forfeiture amount or Barker's four (4) year term of supervised release. Id.

Approximately two months after Barker commenced his term of supervised release on November 4, 2010 (id., Dkt. No. 78),^[5] he tested presumptively positive for opiates and admitted to having used hydrocodone. Id. After Barker had prohibited contact with several inmates at USP Marion, his probation officer filed a 12C petition on May 20, 2011, alleging that Barker had ferried information between institutions to help inmates move money (Id., Dkt. No. 79). One month later, the probation officer amended that petition to add allegations about recorded telephone conversations between Barker and two inmates at USP Marion (Id., Dkt. No. 92). Following a hearing on June 21, 2011, the Court revoked Barker's supervised release and sentenced him to eighteen (18) months of imprisonment followed by thirty (30) months of supervised release (Id., Dkt. No. 94).

Barker appealed this sentence on June 29, 2011 (id., Dkt. No. 96), and later moved pro se to modify it pursuant to 18 U.S.C. § 3582(c)(2) and/or § 3583(3) (Id., Dkt. No. 103). The Court denied Barker's motion to modify (id., Dkt. No. 105), and on April 25, 2012, the Fourth Circuit affirmed his revocation and sentence (Id., Dkt. No. 110).

Barker returned to supervision on November 29, 2012, (Id., Dkt. No. 114). But mere months later, on February 8, 2013, his probation officer filed another 12C petition based on the following violations of his conditions of supervision:

• On January 28, 2013, Barker had submitted a urine specimen that was presumptively positive for opiates and cocaine. Barker had also admitted to using heroin;

• Family members at Barker's approved residence had advised that he had left the residence and that they were unaware of his whereabouts; and • On February 1, 2013, Barker had failed to report for drug testing and never submitted a written report for January 2013.

Id.

The probation officer amended this petition on February 12, 2013, after Barker was arrested at a residence where significant amounts of drug paraphernalia, illegal controlled substances (including synthetic marijuana and suspected heroin), and approximately $1,500 in cash were found (Id., Dkt. No. 123). At the time of Barker's arrest, two convicted felons were with him inside the residence. Id. The Court again revoked Barker's supervision on October 22, 2013, and sentenced him to eighteen (18) months of imprisonment with no supervision to follow (Id., Dkt. No. 132). Completion of this sentence concluded all activity in Criminal Action No. 1:04CR86.^[6]

B. Criminal Action No. 1:13CR18

On March 5, 2013, the Government filed new felony charges against Barker, including Conspiracy to Possess with the Intent to Distribute Heroin, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846; Possession with the Intent to Distribute Heroin - Aiding and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2; and Maintaining Drug-Involved Premises - Aiding and Abetting, in violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (Criminal Action No. 1:13CR18, Dkt. No. 1). On April 4 and 10, 2013, Barker filed motions to suppress the evidence seized during the search of his residence on February 3rd (Id., Dkt. Nos. 14, 20).

On May 13, 2013, the magistrate judge recommended that the Court deny the motions to suppress (Id., Dkt. No. 34). Over Barker's objections, the Court adopted this recommendation and denied the motions to suppress (Id., ...