Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Havens

United States District Court, W.D. Virginia, Abingdon Division

April 29, 2019

UNITED STATES OF AMERICA
v.
CHARLES EARNEST HAVENS, JR., Defendant.

          Charles Earnest Havens, Jr., Pro Se Defendant.

          OPINION AND ORDER

          James P. Jones United States District Judge

         Defendant Charles Earnest Havens, Jr., a federal inmate proceeding pro se, has filed a motion to appoint counsel, in which he asserts that he needs the assistance of counsel to challenge his prior conviction and sentence in this court. A defendant has no right to counsel in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). However, the court has discretion to appoint counsel to a financially eligible person when “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Upon review of the record, I do not find that the interests of justice warrant the appointment of counsel at this time.

         Because Havens has also requested that the court construe his motion in any way necessary to grant relief, and he appears to challenge the validity of his current criminal conviction and sentence, I intend to address his motion as one to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

         However, under Castro v. United States, 540 U.S. 375 (2003), courts must notify pro se litigants when they intend to recharacterize a pleading as a § 2255 motion and provide them the opportunity to withdraw the motion or amend it so that it contains all the § 2255 claims they believe they have. 540 U.S. at 383. Courts must also warn inmates of the consequences of recharacterizing their pleading as a § 2255 motion. Id.

         First, a federal inmate who wishes to file a § 2255 motion must normally do so within one year of the date upon which the judgment becomes final. 28 U.S.C. § 2255(f). If the defendant does not appeal the trial court's judgment, the judgment generally becomes final fourteen days after entry of final judgment, when the defendant's opportunity to appeal expires. See Fed. R. App. P. 4(b). However, a litigant may also be able to demonstrate circumstances under which the court will calculate the one-year statute of limitations from a different date, such as the date upon which the litigant discovers new evidence or the date on which a new rule of law applicable to the case was recognized by the Supreme Court and made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2255(f).

         After review of Havens' motion, I note that it appears to be untimely, and it may be summarily dismissed as such if treated as a § 2255 motion. Havens claims that he received ineffective assistance of counsel for a variety of reasons, but he does not identify any new evidence that would support his claim and allow the court to calculate the statute of limitations from a later date. Havens also relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2552 (2015), to argue that his sentence is unconstitutional. However, even assuming that Johnson applies to Havens' sentence, his motion falls beyond the one-year statute of limitations for raising this argument.[1] Nonetheless, I will allow Havens the opportunity to withdraw the present motion or amend it to submit additional information to cure its untimeliness.

         Second, once a litigant has filed one § 2255 motion, he or she must apply for certification from the United States Court of Appeals for the Fourth Circuit in order to file a second or subsequent § 2255 motion as to the same conviction or sentence. 28 U.S.C. § 2255(h). In light of this limitation on filing successive § 2255 motions, I advise Havens that if he elects to have the court address the present motion as a § 2255 motion, he should include any other claim that he believes causes his conviction or sentence to be invalid or unconstitutional. However, if he has additional grounds and fails to amend, such claims raised in a later § 2255 motion would be dismissed as successive unless he first received certification from the United States Court of Appeals for the Fourth Circuit to file a successive motion.

         Rule 2(b) of the Rules Governing § 2255 Proceedings requires a motion to vacate under § 2255 to be signed under penalty of perjury and to substantially follow the standard form.

         Accordingly, it is hereby ORDERED as follows:

1. The Motion to Appoint Counsel, ECF No. 305, is DENIED as to its request that the court appoint counsel; and
2. The Motion to Appoint Counsel, ECF No. 305, is CONDITIONALLY FILED as a § 2255 motion and Havens is hereby DIRECTED to submit to the court within 21 days from the date of entry of this Order either (a) an objection to the court's intention to address the Motion to Appoint Counsel as one arising under § 2255, or (b) a completed § 2255 motion form (ENCLOSED), signed under penalty of perjury, to have the court consider the claims under § 2255. Havens' failure to comply with this Order will result in the dismissal of the conditionally filed § 2255 action without prejudice.

         Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion under 28 U.S.C. § 2255)

         In ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.