United States v. Bernard Martin ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7552
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BERNARD KEITH MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:08-cr-00230-1; 2:10-cv-00444)
Submitted: March 19, 2013 Decided: March 28, 2013
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bernard Keith Martin, Appellant Pro Se. Gary L. Call, Steven
Loew, Assistant United States Attorneys, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty plea to one count of possessing
with intent to distribute oxycodone, in violation of 21 U.S.C.
§ 841(a)(1) (2006), and aiding and abetting his co-defendant in
the same, in violation of 18 U.S.C. § 2 (2006), Bernard Keith
Martin was sentenced to 151 months’ imprisonment. This court
affirmed Martin’s conviction and dismissed his appeal of the
sentence based on the appeal waiver included in his plea
agreement. See United States v. Martin, 352 F. App’x 851 (4th
Cir. 2009).
Martin subsequently filed a motion, pursuant to 28
U.S.C.A. § 2255 (West Supp. 2012), to vacate, set aside, or
correct his sentence. In that motion, Martin raised only one
claim: that trial counsel was constitutionally ineffective in
failing to apprise Martin, prior to entry of the guilty plea,
that pleading guilty would forfeit his right to appeal the
district court’s prior order denying his motion to suppress.
See Tollett v. Henderson, 411 U.S. 258, 267 (1973); United
States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004). The
district court appointed counsel to represent Martin and held
two evidentiary hearings on the motion. Martin’s trial counsel
testified at both of these hearings, while Martin testified only
at the initial hearing before the magistrate judge. Although
the district court ultimately adopted the magistrate judge’s
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recommendation to deny relief on the motion, the court also
granted a certificate of appealability on this issue.
We have thoroughly reviewed the record in this case,
including the transcripts of the evidentiary hearings, the
documentary evidence adduced for those hearings, the magistrate
judge’s report and recommendation, and the district court’s
order. We discern no clear error in any of the district court’s
factual findings or credibility assessments and no reversible
error in any of its dispositive analysis. See Fed. R. Civ. P.
52(a)(6); United States v. Roane, 378 F.3d 382, 395 (4th Cir.
2004). Accordingly, we affirm the district court’s order. See
United States v. Martin, Nos. 2:08–cr–00230-1; 2:10–cv–00444
(S.D.W. Va. Aug. 23, 2012). We deny the pending motion for the
appointment of counsel. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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