US v. Bernard Martin, No. 12-7552 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7552 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BERNARD KEITH MARTIN, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 agreement. on the appeal waiver included in his plea See United States v. Martin, 352 F. App x 851 (4th Cir. 2009). Martin U.S.C.A. subsequently § 2255 (West correct his sentence. claim: Supp. filed 2012), a motion, to pursuant vacate, set to 28 aside, or In that motion, Martin raised only one 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 States v. v. Henderson, Bundy, 392 F.3d 411 U.S. 641, 258, 644 (4th 267 (1973); Cir. United 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. the district court ultimately adopted 2 the magistrate Although judge s 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 order. report and recommendation, and the district court s 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). United Accordingly, we affirm the district court s order. States v. Martin, Nos. (S.D.W. Va. Aug. 23, 2012). appointment of counsel. 2:08 cr 00230-1; See 2:10 cv 00444 We deny the pending motion for the 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 3