Barker v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ERIC SCOTT BARKER,

Petitioner,

Civil Action No. 1:19CV134

Criminal Action No. 1:16CR31-1

v. (Judge Keeley)

UNITED STATES OF AMERICA,

Respondent.

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

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

1 Unless otherwise noted, all docket numbers refer to Criminal Action

No. 1:16CR31.

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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.?

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,? the probation officer filed

a 12C petition on September 24, 2004, seeking to revoke that

supervision based on the following violations:

e Barker’s arrest on September 23, 2004, for Domestic Battery;

* An outline of this history is attached as Exhibit A.

3 Upon transfer from the Southern District of West Virginia to this

Court, the case number became Criminal Action No. 1:04CR68.

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

e 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;

e Barker’s failure to submit a written monthly report for August

2004; and

e 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

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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

4

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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

5

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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

4 The Court ordered Barker’s revocation sentence in Criminal Action No.

1:04CR68 to run consecutively to this sentence. See discussion supra pp.

3-4.

6

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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

5 As stated earlier, the Court did not include an additional term of

supervision when it revoked Barker’s supervised release in Criminal

Action No. 1:04CR68.

7

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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:

e 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;

e Family members at Barker’s approved residence had advised

that he had left the residence and that they were unaware of

his whereabouts; and

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

e 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.°®

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

6 As is noted later, infra pp. 10-13, Barker’s sentence in Criminal

Action No. 1:13CR18 was consecutive to this revocation sentence.

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

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., Dkt. No. 47).

Although he was represented by a Federal Public Defender,

Barker filed a pro se motion on July 8, 2013, asking that the Court

reconsider its denial of his suppression motions (Id., Dkt. No.

51). But that same day he pleaded guilty before the magistrate

judge to Possession with the Intent to Distribute Heroin – Aiding

and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)

10

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

and 18 U.S.C. § 2 (Id., Dkt. No. 55). Barker’s plea agreement

included a stipulation that he qualified as a career offender, id.

at 3, and a waiver of his appellate and collateral attack rights

except for the right to challenge the denial of his motions to

suppress. Id. at 4-5.

The day after his plea, on July 9, 2013, a grand jury returned

a superseding indictment charging Barker with the same offenses

but adding another defendant to two of the counts (Id., Dkt. No.

60).7 Prior to sentencing, Barker filed a memorandum seeking a

variance from the career offender guideline because he was a low-

level drug dealer who suffered from addiction (Id., Dkt. No. 92).

On October 22, 2013, the Court sentenced Barker to 151 months

of imprisonment, and ordered that sentence to run consecutively to

his 18-month revocation sentence in Criminal Action No. 1:04CR86

(Id., Dkt. No. 104). Barker immediately appealed to the Fourth

7 Following return of the superseding indictment, the Court ordered the

parties to file an addendum to the plea agreement, explicitly

establishing the conditional nature of Barker’s earlier plea by

demonstrating that the requirements of Fed. R. Crim. P. 11(a)(2) and

United States v. Bundy, 392 F.3d 641, 644-45 (4th Cir. 2004), had been

met (Criminal Action No. 1:13CR18, Dkt. 74). The parties subsequently

filed an addendum pursuant to Bundy (Id., Dkt. No. 77).

11

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Circuit (id., Dkt. No. 112), which, on January 13, 2015, vacated

and remanded the case with directions that the Court consider

whether, pursuant to the “independent source” doctrine, the

officers performing the search that had led to Barker’s arrest

would have sought a warrant even if they had not conducted an

unlawful search (Id., Dkt. No. 136 at 4).

On remand, the Court held a status conference on April 24,

2015, to set Barker’s conditions of pre-trial release (Id., Dkt.

No. 146). Shortly thereafter, the United States filed a motion to

dismiss the superseding indictment based on the unavailability of

the necessary drug evidence (Id., Dkt. No. 157). The Court then

dismissed the superseding indictment in Criminal Action No.

1:13CR18 on May 11, 2015 (Id., Dkt. No. 158).

12

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

C. Criminal Action No. 1:16CR31

1. Original Indictment8

Between April 2014 and April 2016, during which time he was

serving part of his 18-month revocation sentence at Central

Regional Jail, Barker conspired with his father, Randall Barker,

and then-girlfriend, Megan Dunigan (“Dunigan”), to distribute MAM-

2201, an analogue of JWH-122 and AM-2201, to prison inmates across

the country (Dkt. No. 221 at 3). Jail officials at Central Regional

Jail discovered the conspiracy after intercepting inmate

correspondence later confirmed to contain MAM-2201-infused paper.

Id.

Barker discussed his so-called “prisoner service” business on

numerous recorded jail calls from Central Regional Jail. Id. at 4.

He used these calls to direct his father and Dunigan to mail items

to third parties, and also to discuss wire transfers and price

negotiations with them. Id. Between April 13, 2014, and March 11,

8 These facts are taken from the Government’s version of the offense

conduct in Barker’s modified presentence report (Dkt. No. 221), to which

he did not object.

13

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

2016, Barker and his co-defendants received at least $170,000 in

wire transfers from individuals across the country, and sent funds9

to Chinese companies to pay for synthetic drugs. Id.

Following Barker’s release from custody on April 24, 2015,

law enforcement officers conducted trash pulls at the residence he

shared with Randall Barker and Dunigan and discovered the following

incriminating evidence: (1) a notepad bearing federal inmate

names, their BOP numbers, and various dollar amounts; (2) discarded

letters from inmates referencing money paid for “legal work,”

“legal briefs,” or “pictures”; (3) a shipping label from China

addressed to Dunigan; (4) empty spray bottles with white residue;

(5) an empty gallon can of acetone; and (6) empty reams of printer

paper. Id.

After obtaining a search warrant, officers searched Barker’s

residence on March 22, 2016, and recovered materials and

paraphernalia used to produce drug-laced correspondence. These

9 Although $60,000 was originally included in the presentence report,

the actual amount of funds Barker sent to China was less than $27,000.

See discussion infra pp. 53-59.

14

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

included spray bottles, a funnel, printer paper, ink cartridges,

acetone, envelopes, postal labels, scales, printers, ledgers, and

bags of white powdery substances believed to be MAM-2201. Id.

Officers also seized more than $20,000 in cash. Id.

Following this search, a grand jury indicted Barker, Randall

Barker, and Dunigan on May 3, 2016, for Conspiracy to Distribute

and Possess with the Intent to Distribute MAM-2201, in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; Maintaining a Drug-

Involved Premises, in violation of 21 U.S.C. § 856(a)(1); and nine

counts of Distribution of the Controlled Substance Analogue MAM-

2201, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18

U.S.C. § 2(a) (Dkt. No. 1). The indictment also contained a

forfeiture allegation. Id. Two days later, on May 5, 2016, Barker

and Dunigan were arrested in Holiday, Florida (Dkt. No. 13).

15

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

2. Superseding Indictment10

Following his arrest, Barker was detained and housed at North

Central Regional Jail where, in mid-September 2016, two inmates,

one of whom was Barker’s cellmate, overdosed (Dkt. No. 221 at 2-

3). When medical personnel responded to the cellmate’s overdose,

they had to revive him with Narcan. Id. at 3. The cellmate later

admitted he had overdosed twice on “fentanyl” provided by Barker,

and that Barker regularly obtained drugs through what appeared to

be legal mail. Id.

On September 14, 2016, correctional officers identified a

suspicious package addressed to Barker that included a return

address for a local attorney in Clarksburg, West Virginia. Id.

Found affixed to the back of one of the middle pages inside the

envelope was a small piece of paper, forming a pocket, which

contained a powdery substance later identified by the West Virginia

State Police laboratory as para-fluorofentanyl. Id.

10 These facts are taken from the Government’s version of the offense

conduct in Barker’s modified presentence report (Dkt. No. 221), to which

he did not object.

16

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

In addition to Barker’s cellmate, other inmates at North

Central Regional Jail confirmed that he was selling “fentanyl” and

“K2” in the jail, and that his father, Randall Barker, was sending

the drugs to him. Id. Consequently, on November 13, 2016,

investigators completed a controlled delivery from Randall Barker

of a second package of court-related documents with another small,

concealed pocket containing para-fluorofentanyl. Id.

As a result of this, a grand jury returned a superseding

indictment against Barker, Randall Barker, and Dunigan on January

4, 2017, which charged them with Conspiracy to Distribute and

Possess with the Intent to Distribute MAM-2201 and Buprenorphine,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(E)(i)

and 846; Maintaining a Drug Involved Premises, in violation of 21

U.S.C. § 856(a)(1); twelve counts of Distribution of the Controlled

Substance Analogue MAM-2201, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C) and 18 U.S.C. § 2(a); Conspiracy to Distribute Para-

Fluorofentanyl, in violation of 21 U.S.C. § 846; Distribution of

Para-Fluorofentanyl, in violation of 21 U.S.C § 841(a)(1),

(b)(1)(C); Attempted Possession with the Intent to Distribute

17

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Para-Fluorofentanyl, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(C) and 846; and Attempted Possession of a Prohibited Object

– Para-Fluorofentanyl, in violation of 18 U.S.C. § 1791(a)(2),

(b)(1) (Dkt. No. 151). The superseding indictment also contained

a forfeiture allegation. Id. at 13.

3. Plea Agreement

Following return of the superseding indictment, Barker signed

a binding plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C)

on June 28, 2017, and two days later pleaded guilty to Attempted

Possession with the Intent to Distribute Para-Fluorofentanyl, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846 (Dkt. Nos.

204, 205).

Significantly, the terms of Barker’s binding plea agreement

included a stipulated term of imprisonment of 120 months (Dkt. No.

205 at 2). Moreover, as a result of the parties’ purposeful

negotiations, the Government agreed to extend binding plea offers

to 36-month sentences to his co-defendants, Randall Barker and

Dunigan. Id.

18

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Barker also agreed to waive his right to appeal any order,

conviction, sentence, or the manner in which any sentence was

determined on any ground whatsoever and agreed to waive his right

to challenge the conviction or sentence or the manner in which it

was determined in any post-conviction proceeding, including any

proceeding under 28 U.S.C. § 2255. Id. at 4. He did, however,

retain his right to perfect any legal remedies on appeal or

collateral attack concerning claims of ineffective assistance of

counsel or prosecutorial misconduct. Id.

4. Plea Hearing

At the plea hearing, the Government called Corporal John Wayne

Smith of the West Virginia State Police to provide a factual basis

for Barker’s guilty plea (Dkt. No. 328 at 35-38). Corporal Smith

testified that he had investigated the importation of para-

fluorofentanyl into the North Central Regional Jail and, pursuant

to that investigation, had determined Barker was receiving the

drugs through mail falsely identified as legal correspondence. Id.

Under oath, Barker agreed that Corporal Smith’s testimony was

accurate and confirmed he had smuggled the para-fluorofentanyl

19

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

into the regional jail with the intent to distribute it. Id. at

38-39.

5. Sentencing

Following preparation of a modified presentence report,11

despite being represented by counsel, Barker filed three pro se

objections concerning his criminal history category, his career

offender designation, and his belief that he was not serving a

sentence of supervision at the time he distributed controlled

substances (Dkt. No. 221 at 16-17). The probation officer responded

to these objections, id. at 13-15, but neither the Government nor

Barker’s counsel objected to the information in the presentence

report during the sentencing hearing (Dkt. No. 331 at 17-21).

At that hearing, the Court calculated what Barker’s guideline

range would be but for his binding plea agreement. It determined

that Barker’s total drug relevant conduct resulted in a base

11 The probation officer used Barker’s earlier presentence reports from

Criminal Actions Nos. 1:13CR18-1 and 1:04CR86-2, Criminal Action No.

6:01CR256-1 from the Southern District of West Virginia, and the 2016

version of the United States Sentencing Guidelines. The Court also has

used the 2016 version of the guidelines in its consideration of Barker’s

habeas arguments.

20

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

offense level of 30. U.S.S.G. §§ 2D1.1(a)(5), (c)(5), cmt. n.8(D).

It increased that offense level by two levels because the object

of Barker’s offense had been the distribution of a controlled

substance in a prison, correctional facility, or detention

facility. Id. § 2D1.1(b)(4). Then, applying a three-level

reduction for acceptance of responsibility under U.S.S.G. § 3E1.1,

it determined that Barker’s total offense level was a 29 prior to

any consideration of the career offender enhancement. Thus, with

a level 29 and criminal history category of IV, Barker’s guideline

range would have been 121 to 151 months of imprisonment.

Barker, however, did meet the definition of a career offender

under U.S.S.G. § 4B1.1 based on his age, the nature of his instant

offense, and his prior convictions for (1) Conspiracy to Distribute

a Quantity of Heroin (S.D. W. Va., Criminal Action No. 6:01CR256-

01)12 and (2) Aiding and Abetting in Possession with the Intent to

Distribute 5 Grams or more of Cocaine Base and less than 500 Grams

12 This case eventually became Criminal Action No. 1:04CR68, in which

supervision was transferred to this Court.

21

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

of Cocaine (Criminal Action No. 1:04CR86)13. Consequently, pursuant

to U.S.S.G. § 4B1.1(b), Barker’s criminal history category

increased from a IV to a VI. And because the maximum term of

imprisonment for his instant offense was 20 years, 21 U.S.C.

§ 841(b)(1)(C), under the career offender guidelines, his offense

level was fixed at a minimum of 32. U.S.S.G. § 4B1.1(b). With a

three-level reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1, Barker’s final advisory guideline range was 151

to 188 months of imprisonment.

But because the Court had accepted Barker’s binding plea

agreement to a non-guideline sentence of 120 months of

imprisonment, it concluded that his career offender status did not

impact his sentence and explained to Barker: “[T]he sentencing

range would be 151 to 188 months of imprisonment under the advisory

13 This conviction was originally listed in the presentence report as

“Possession with Intent to Distribute Cocaine Base and Cocaine HCL” (Dkt.

No. 221 at 6). The Court later corrected this error to reflect that

Barker’s conviction in Criminal Action No. 1:04CR86 was for Aiding and

Abetting in Possession with the Intent to Distribute 5 Grams or more of

Cocaine Base and less than 500 Grams of Cocaine (Dkt. Nos. 356, 358 at

6). See infra pp. 26-27.

22

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

guidelines, but by agreement between the parties, it’s reduced to

120 months” (Dkt. No. 331 at 6).

The Court sentenced Barker to 120 months of imprisonment and

3 years of supervised release (Dkt. No. 222). It also adopted, by

reference, the Preliminary Order of Forfeiture and reduced the

total money judgment in the case to $148,037 in order to account

for funds previously seized by the United States. Id.

After the Court entered its final judgment on August 21, 2017

(Dkt. No. 222), Barker did not appeal and his conviction became

final fourteen (14) days later on September 4, 2017. Fed. R. App.

P. 4(b)(1)(A)(I). Thereafter, on August 1, 2018, the Court entered

a Final Order of Forfeiture (Dkt. No. 252). Eight months later, on

April 1, 2019, the Government moved to forfeit an additional

$317.05 located in a Bureau of Prisons Trust Fund Account belonging

to Barker (Dkt. No. 263). The Court granted that motion on April

5, 2019 (Dkt. No. 264).

6. Pro Se Post-Sentencing Motions

Although Barker did not appeal, he did file numerous pro se

motions. On April 29, 2019, he moved to correct his sentence by

23

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

striking the Final Order of Forfeiture on the basis that it was

predicated on obtaining a conviction for a MAM-2201 distribution

offense (Dkt. No. 265). He also objected to the Government’s motion

for a subsequent forfeiture and filed a supplemental brief (Dkt.

Nos. 266, 268). Next, he moved for judgment on the pleadings based

on his motion to correct and objections to the Government’s motion

(Dkt. No. 278). After the Court ordered the Government to respond

to Barker’s motion to correct (Dkt. No. 279), Barker objected to

that response on October 25, 2019 (Dkt. No. 282).

Thereafter, on February 21, 2020, Barker moved to strike and

reissue the Final and Preliminary Orders of Forfeiture (Dkt. No.

292). Following that, on February 28, 2020, pursuant to Fed. R.

Civ. P. 36, he moved to correct his presentence report (Dkt. No.

294). And on March 6, 2020, again pursuant to Fed. R. Crim. P. 36,

he moved for an evidentiary hearing in support of that motion (Dkt.

No. 295). He later filed supplemental authority in support of the

same (Dkt. No. 297).

On May 5, 2020, pursuant to Fed. R. Crim. P. 36, Barker filed

a second motion to correct the record and, on May 26, 2020, asked

24

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

the Court to appoint the Federal Public Defender’s Office to

represent him on this motion (Dkt. Nos. 301, 305). He also

submitted a supplemental brief and attached “documentary evidence”

in support of his motion to correct his presentence report (Dkt.

No. 304).14 Subsequently, on May 14, 2020, he moved for a prompt

order directing the Government to immediately release any seized

assets and, on June 11, 2020, moved to correct his Judgment and

Commitment Order under Fed. R. Crim. P. 36 (Dkt. Nos. 302, 312).

On March 1, 2021, he sought a copy of the search warrant and

affidavit in Case No. 1:16MJ137 (Dkt. No. 345). Finally, on August

2, 2021, he moved to recuse and/or disqualify the Court from his

case (Dkt. No. 355).

On September 3, 2021, the Court entered a Memorandum Opinion

and Order in which:

1. It denied Barker’s motion to recuse/disqualify the Court

(Dkt. No. 355);

14 Barker later filed new evidence, supplemental citations to authority,

and supplemental briefing regarding this Fed. R. Crim. P. 36 motion on

April 19, 2021, May 10, 2021, and May 24, 2021 (Dkt. Nos. 348, 351, 352,

354).

25

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

2. It granted in part and denied in part Barker’s motion to

correct his presentence report (Dkt. No. 294), and directed

the United States Probation Office to file a Second Amended

Presentence Report reflecting that Barker’s conviction in

Criminal Action No. 1:04CR86 was for Aiding and Abetting

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) and 841(b)(1)(C);

3. It denied Barker’s Motion for Correction of Sentence (Dkt.

No. 265), Second Motion to Correct Record (Dkt. No. 301),

Motion for Appointment of Counsel (Dkt. No. 305), Motion to

Correct Judgment and Commitment Order (Dkt. No. 312), and

Motion for Copy of Search Warrant and Affidavit (Dkt. No.

345);

4. It overruled Barker’s Objections to the Government’s

Amendment to its Preliminary Order of Forfeiture (Dkt. No.

266), and Objections to the Government’s Response (Dkt. No.

282); and

26

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

5. It denied as moot his Motion for Ruling on the Pleadings for

the Objections to and Correction of the Forfeiture Order (Dkt.

No. 278), Motion to Strike and Reissue the Final Forfeiture

Order and the Amended Preliminary Order (Dkt. No. 292), Motion

for Prompt Order Directing the USA to Immediately Release

Seized Assets to the Defendant to Prevent Further Irreparable

Harm (Dkt. No. 302), and Motion for Evidentiary Hearing (Dkt.

No. 295).

(Dkt. No. 356).

II. PETITION PURSUANT TO

28 U.S.C. § 2255 IN CRIMINAL ACTION NO. 1:16CR31

A. Background

Almost two years after being sentenced in Criminal Action No.

1:16CR31, on July 5, 2019, Barker filed a habeas petition pursuant

to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his

sentence.15 He then re-filed his habeas petition on the court-

15 Although Barker’s § 2255 petition was not filed on the court-approved

form until July 19, 2019, the Court will use the date he first filed his

§ 2255 petition, July 5, 2019, to determine whether it was timely filed.

See United States v. Emmanuel, 288 F.3d 644 (4th Cir. 2002), overruled

in part on other grounds, United States v. Blackstock, 513 F.3d 128 (4th

Cir. 2007).

27

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

approved form on July 19, 2019, alleging that (1) he had been

erroneously sentenced as a career offender because, according to

recent changes in relevant case law, his attempt offense in

Criminal Action No. 1:16CR31 no longer constituted a controlled

substance offense under U.S.S.G. § 4B1.2(b); (2) his counsel had

been ineffective for leading him to believe that a 120-month

sentence was reasonable; and (3) he was actually innocent of his

attempt offense in Criminal Action No. 1:16CR31 because fentanyl

analogues can “trigger false positives” for controlled substances

(Dkt. No. 273).

Following a preliminary review in accord with Rule 4 of the

Rules Governing Section 2255 Proceedings, the Court concluded that

Barker’s motion may be untimely and sent him a notice pursuant to

Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002), warning that his

motion would be dismissed unless he could demonstrate that the

applicable statute of limitations did not bar his claims (Dkt. No.

274). Barker received that notice on August 6, 2019, and argued in

response that his claims were timely because (1) the Government

had “misled” the Court into applying a career offender enhancement;

28

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

(2) subsequent case law in the Sixth and D.C. Circuits amounted to

newly discovered facts in his case; and (3) these alleged defects

when combined with others resulted in a gross miscarriage of

justice (Dkt. No. 276).

Thereafter, on September 3, 2019, Barker filed a motion for

citation of supplemental authorities in support of tolling the

statute of limitations (Dkt. No. 277), and on November 1, 2019, he

filed a motion to expedite a ruling on the pleadings (Dkt. No.

283). Then, on November 18, 2019, he filed a memorandum in support

of the actual innocence exception to procedural default (Dkt. No.

285). He followed that on January 31, 2020, with a memorandum of

fact and law in support of tolling the statute of limitations (Dkt.

No. 287), and another memorandum of fact and law in support of his

ineffective assistance of counsel claim (Dkt. No. 288).

Thereafter, he filed a supplemental response to the Hill v. Braxton

notice on February 21, 2020 (Dkt. No. 291) and, on April 30, 2020,

moved to stay this action pending a ruling on his motion to correct

his presentence report (Dkt. No. 298).

29

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

On June 2, 2020, Barker moved to supplement his § 2255

petition to add two new grounds for relief: (1) that his counsel

had been ineffective at the plea hearing by failing to elicit

testimony from the Government’s witness negating his intent to

distribute controlled substances; and (2) that his guilty plea

lacked a sufficient factual basis (Dkt. No. 306).16 On June 20,

2020, he again moved to supplement his § 2255 petition to add a

claim of prosecutorial misconduct, alleging that Government

counsel had altered discovery documents by changing the dollar

amount used to calculate his relevant conduct (Dkt. No. 315). He

filed documents in support of this claim on November 23, November

24, and December 14, 2020 (Dkt. Nos. 336, 338, 342).

Subsequently, on January 11, 2021, Barker filed his third

motion to amend his § 2255 petition, in which he argued that his

claims were not subject to procedural default because he was

actually innocent of a predicate offense to his career offender

designation (Dkt. No. 343). On September 24, 2021, he filed

16 Although Barker’s motion seeks to add “grounds 5 and 6,” his § 2255

petition states only three grounds for relief (Dkt. No. 273).

30

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

additional documents in support of both his prosecutorial

misconduct and actual innocence claims (Dkt. Nos. 369 and 370,

respectively).

B. Motions to Amend

Under Rule 12 of the Rules Governing Section 2255 Proceedings,

the Federal Rules of Civil Procedure “may be applied” “to the

extent that they are not inconsistent with any statutory provisions

or these rules.” Accordingly, because the Rules Governing Section

2255 Proceedings do not provide for an amendment procedure, Fed.

R. Civ. P. 15 applies. United States v. Pittman, 209 F.3d 314,

316-17 (4th Cir. 2000).

Fed. R. Civ. P. 15(a)(1) provides that

A party may amend its pleading once as a matter

of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a

responsive pleading is required, 21 days after

service of a responsive pleading or 21 days

after service of a motion under Rule 12(b),

(e), or (f), whichever is earlier.

31

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Otherwise, “a party may amend its pleading only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. P.

15(a)(2). “The court should freely give leave when justice so

requires.” Id.

Here, Barker moved to amend his § 2255 petition to allege

that (1) his counsel was ineffective at the plea hearing (Dkt. No.

306); (2) the Court erroneously accepted his guilty plea, id.; (3)

the Government altered discovery documents by changing a dollar

amount (Dkt. No. 315); and (4) his claims are not subject to

procedural default (Dkt. No. 343). Given the serious nature of

these allegations, the interests of justice favor amendment, and

the Court therefore GRANTS Barker’s motions to amend his § 2255

petition (Dkt. Nos. 306, 315, 343).

Barker also has filed a motion for citation of supplemental

authorities in support of tolling the statute of limitations (Dkt.

No. 277). Because this motion was filed within 21 days after Barker

responded to this Court’s Hill v. Braxton notice, the Court GRANTS

Barker’s motion to cite supplemental authority (Dkt. No. 277).

32

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

To sum up, Barker has asserted the following six grounds for

habeas relief: (1) his counsel was constitutionally ineffective

for leading him to believe that a 120-month sentence was

reasonable; (2) his counsel was constitutionally ineffective at

the plea hearing by failing to elicit exculpatory testimony from

the Government’s witness; (3) the Government engaged in

prosecutorial misconduct by altering discovery documents to change

a dollar amount; (4) he was erroneously sentenced as a career

offender; (5) he is actually innocent of his attempt offense; and

(6) the Court lacked a sufficient factual basis to accept his

guilty plea.

C. Applicable Law

Section 2255(a) permits federal prisoners who are in custody

to assert the right to be released if “the sentence was imposed in

violation of the Constitution or laws of the United States,” if

“the court was without jurisdiction to impose such sentence,” or

if “the sentence was in excess of the maximum authorized by law,

or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

A petitioner bears the burden of proving any of these grounds by

33

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

a preponderance of the evidence. See Miller v. United States, 261

F.2d 546, 547 (4th Cir. 1958).

D. Discussion

Barker’s § 2255 petition is untimely because it fails to meet

any of the exceptions in § 2255(f) and fails to warrant equitable

tolling. And even when considered on its merits, his petition

misapprehends the fact that he was not sentenced as a career

offender. Further, he suffered no prejudice when the Court made

reference to the career offender guideline during his sentencing

hearing.

1. Timeliness

The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”) established a one-year statute of limitations for filing

a habeas petition under § 2255. Under the AEDPA, the limitation

period runs from the latest of:

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by the governmental action in

violation of the Constitution or laws of the

34

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

United States is removed, if the movant was

prevented from making a motion by such

governmental action;

(3) the date on which the right was initially

recognized by the Supreme Court and made

retroactively applicable to cases on

collateral review; or

(4) the date on which the facts supporting the

claim or claims presented could have been

discovered through the exercise of due

diligence.

28 U.S.C. § 2255(f)(1)-(4).

A criminal conviction becomes final at the end of the

appellate process or when the time for a direct appeal expires and

the defendant has not noticed an appeal. United States v. Oliver,

878 F.3d 120, 125 (4th Cir. 2017). Here, Barker had to file his

habeas petition by September 4, 2018, one year after his conviction

became final on September 4, 2017. 28 U.S.C. § 2255(f)(1). But he

did not file his petition until July 5, 2019, nearly one year after

the expiration of the statute-of-limitations deadline (Dkt. No.

1). Thus, his claims are procedurally barred under § 2255(f)(1).

Despite this, Barker contends that the limitations period

should run from a later date because § 2255(f)(1) is not applicable

35

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

to his case. Specifically, he contends §§ 2255(f)(4) and (2) extend

the limitations period. Alternatively, he argues that the

limitations period should be equitably tolled. The Court will

address each of these arguments in turn.

a. Section 2255(f)(4)

Barker first asserts that his petition is not barred because

the applicable one-year limitations period began to run from the

date on which the facts supporting his claims could have been

discovered through the exercise of due diligence. 28 U.S.C.

§ 2255(f)(4); see Dkt. No. 273 at 13 (indicating that § 2255(f)(4)

applies). However, neither in his petition nor in his response to

the Hill v. Braxton notice does Barker explain how § 2255(f)(4)

applies (Dkt. No. 276). Specifically, he provides no evidence of

any newly discovered facts supporting the claims in his § 2255

petition, nor does he identify the date on which such facts could

have been discovered through the exercise of due diligence.

Accordingly, § 2255(f)(4) does not apply to his motion.

36

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

b. Section 2255(f)(2)

Barker next contends that, pursuant to § 2255(f)(2), the

statute of limitations should run from the date on which an

“impediment to making [his] motion” due to “governmental action in

violation of the Constitution or laws of the United States is

removed.” Id. According to Barker, the government “misled” the

Court regarding application of the career offender enhancement

because inchoate offenses no longer qualify as controlled

substance offenses for purposes of the career offender enhancement

(Dkt. No. 276 at 2).

Pursuant to his binding plea agreement, Barker stipulated to

and received a sentence of 120 months, well below the low end of

the guideline range applicable to a career offender.17 Despite his

contention otherwise, he was never sentenced as a career offender.

Accordingly, no unconstitutional act by the Government prevented

him from filing his § 2255 motion within the one-year limitations

17 Barker’s assertion that his guideline range of imprisonment would have

been 8 to 14 months without the career offender enhancement is without

merit (Dkt. No. 276 at 6).

37

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

period, and he has failed to establish that his motion is timely

under § 2255(f)(2).

c. Equitable Tolling

The AEDPA’s one-year statute of limitations is subject to

equitable tolling only if a plaintiff can establish (1) that he

has pursued his rights diligently; and (2) that some extraordinary

circumstance prevented timely filing. Holland v. Florida, 560 U.S.

631, 649 (2010). Here, Barker has presented no such evidence.

Indeed, as is discussed later, infra pp. 41-50, Barker’s argument

regarding application of the career offender enhancement is based

solely on legal interpretations of the United States Sentencing

Guidelines contained in cases decided subsequent to his

sentencing, not on any extraordinary circumstances that prevented

his timely filing.

Barker also is mistaken when he argues that he is actually

innocent of the career offender enhancement, a ground he raises to

excuse any procedural default, including untimely filing (Dkt. No.

285, 287, 291, 343). Relying on United States v. Maybeck, 23 F.3d

38

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

888 (4th Cir. 1994), he argues that one of his prior offenses was

not a qualifying predicate offense.

Even if Maybeck would allow for equitable tolling in other

circumstances, it provides no support for Barker’s argument. In

Maybeck, the defendant failed to qualify as a career offender at

the time of his sentencing, but was incorrectly sentenced as such.

23 F.3d at 892. Here, it is undisputed that, although not sentenced

as such, Barker qualified as a career offender under the law at

the time. And the fact that the presentence report listed one of

his predicate offenses incorrectly is not impactful because,

unlike the circumstances in Maybeck, the actual offense committed

by Barker did qualify as a controlled substance offense at the

time.

2. Ineffective Assistance of Counsel

Even if the Court were to equitably toll the statute of

limitations, Barker still would be unable to succeed on the

substantive issues raised in his § 2255 petition. With respect to

ineffective assistance of counsel, he first argues that his trial

counsel erroneously advised him he was subject to the career

39

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

offender enhancement and that, in reliance on that advice, he

accepted the binding plea agreement to a 120-month sentence rather

than face a longer sentence. Next, Barker argues that, at his plea

hearing, his attorney failed to elicit testimony negating his

intent to distribute para-fluorofentanyl.

To succeed on an ineffective assistance of counsel claim, a

petitioner must establish, by a preponderance of the evidence,

that (1) his “counsel’s performance was deficient,” and (2) “the

deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). The petitioner must “satisfy

both prongs, and a failure of proof on either prong ends the

matter.” United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004).

To satisfy the first prong, a petitioner must demonstrate

that his counsel’s conduct “fell below an objective standard of

reasonableness . . . under prevailing professional norms.”

Strickland, 466 U.S. at 687–88. But “[j]udicial scrutiny of

counsel’s performance must be highly deferential” because “[i]t is

all too tempting for a defendant to second-guess counsel’s

assistance after conviction or adverse sentence, and it is all too

40

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

easy for a court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable.” Id. at 689. “Because of the difficulties

inherent in making the evaluation, a court must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id.

To satisfy the second prong, the petitioner must establish

that his counsel’s error was not harmless, but prejudicial to the

outcome of the case. Id. at 694. Where, as here, the petitioner

has entered into a plea agreement, he “must show that there is a

reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

a. Failure to Advise Barker that He Was not a Career

Offender

Barker’s first ground for ineffective assistance is

unpersuasive inasmuch as his 120-month sentence was based on a

binding plea agreement, not a guideline calculation. And that

41

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

sentence was below his otherwise applicable advisory guideline

range with the career offender enhancement.

(i)

Under U.S.S.G. § 4B1.1(a), a defendant qualifies as a career

offender if (1) he was at least eighteen years old at the time he

committed his instant offense; (2) the instant offense of

conviction is a felony that is either a crime of violence or a

controlled substance offense; and (3) he has at least two prior

felony convictions of either a crime of violence or a controlled

substance offense. The text of U.S.S.G. § 4B1.2(b) defines the

term controlled substance offense without reference to inchoate

offenses, but the first application note in the commentary states

that the term includes the offenses of aiding and abetting,

conspiracy, and attempt. U.S.S.G. § 4B1.2 cmt. n.1.

The majority of federal circuit courts that have considered

the question have held that the commentary is consistent with the

text of U.S.S.G. § 4B1.2 and therefore authoritative. See United

States v. Richardson, 958 F.3d 151, 154-55 (2d Cir. 2020); United

States v. Adams, 934 F.3d 720, 729 (7th Cir. 2019); United States

42

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

v. Smith, 54 F.3d 690, 693 (11th Cir. 1995); United States v.

Mendoz-Figueroa, 65 F.3d 691, 693 (8th Cir. 1995); United States

v. Piper, 35 F.3d 611, 617 (1st Cir. 1994).

At least three circuits courts, however, have rejected this

view, holding that the inclusion of inchoate offenses erroneously

expands the plain language of U.S.S.G. § 4B1.2. See United States

v. Nasir, 17 F.4th 459, 471-72 (3d Cir. 2021) (en banc) (holding

that the definition of controlled substance offense does not

include inchoate crimes); United States v. Havis, 927 F.3d 382,

386-87 (6th Cir. 2019) (en banc) (per curiam) (holding that the

definition of controlled substance offense does not include

attempt crimes); United States v. Winstead, 890 F.3d 1082, 1090-

92 (D.C. Cir. 2018) (same).

Until recently, the Fourth Circuit had long “assumed,”

without holding, that convictions for conspiracy under 18 U.S.C.

§ 846 qualified as controlled substance offenses. See United States

v. Norman, 935 F.3d 232, 239-41 (4th Cir. 2019) (citing United

States v. Brandon, 363 F.3d 341, 345 (4th Cir. 2004); United States

43

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

v. Walton, 56 F.3d 551, 555 (4th Cir. 1995); United States v.

Kennedy, 32 F.3d 876, 888 (4th Cir. 1994)).

Subsequent to Barker’s sentencing, however, our circuit began

to apply a categorical approach to determine whether a specific

inchoate conviction qualified as a controlled substance offense

under U.S.S.G. § 4B1.2(b). See United States v Dozier, 848 F.3d

180, 188 (4th Cir. 2017) (holding that a West Virginia conviction

for attempt to distribute a controlled substance is a controlled

substance offense). But see Norman, 935 F.3d at 240 (holding a

conviction for conspiracy to possess a controlled substance with

the intent to distribute under 18 U.S.C. § 846 is not a controlled

substance offense, but nevertheless concluding that the district

court’s error in holding otherwise was not plain and, therefore,

not subject to reversal). Finally, in United States v. Campbell,

22 F.4th 438, 443 (4th Cir. 2022), the Fourth Circuit, joining the

D.C., Third, and Sixth Circuits, held that the inclusion of the

44

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

inchoate offense of attempt erroneously expands the plain language

of U.S.S.G. § 4B1.2.18

(ii)

When Barker was prosecuted in 2017, his counsel rightly was

concerned that, absent a plea agreement, if convicted Barker would

be sentenced as a career offender. He was over 18 years old, and

his offense of conviction was Attempted Possession with the Intent

to Distribute Para-Fluorofentanyl, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C) and 846. Moreover, his two predicate

offenses qualifying for the career offender enhancement were (1)

Conspiracy to Distribute a Quantity of Heroin, in violation of 21

U.S.C. § 846 (S.D. W. Va., Criminal Action No. 6:01CR256); and (2)

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 (1:04CR86, Dkt. No. 42). Accordingly, he advised

18 Campbell reserved judgment as to whether aiding and abetting and

conspiracy also fail to qualify as controlled substance offenses under

U.S.S.G. § 4B1.2. 22 F.4th at 442 n.2.

45

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Barker of his exposure as a career offender under U.S.S.G.

§ 4B1.1(a). That advice, given in 2017, was objectively

reasonable.

Five years later, following the Fourth Circuit’s decision in

Campbell that the inchoate offense of attempt did not qualify as

a controlled substance offense, Barker would no longer qualify as

a career offender. But “a fair assessment of attorney performance

requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

At the time of his prosecution and sentencing in 2017, the

commentary to the sentencing guidelines explicitly took the

position that Barker’s attempt offense qualified as a controlled

substance offense under U.S.S.G. § 4B1.2(b), and case law in the

Fourth Circuit supported that view. Consequently, when Barker was

sentenced, any argument that he did not qualify as a career

offender lacked merit, and “[a]n attorney’s failure to raise a

meritless argument [ ] cannot form the basis of a successful

46

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

ineffective assistance of counsel claim[.]” United States v.

Kimler, 167 F.3d 889, 893 (5th Cir. 1999).

(iii)

Even assuming counsel’s failure to raise such an argument was

objectively unreasonable, Barker ultimately cannot demonstrate

that he was prejudiced by that failure. Specifically, he “must

show that there is a reasonable probability that, but for [his]

counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill, 474 U.S. at 59. A review of the

evidence in this case establishes beyond debate that, even had he

been advised that he may not be a career offender, the probability

that Barker would have proceeded to trial is extremely low.

To begin, given the state of the law in the Fourth Circuit in

2017, defense counsel would have been unsuccessful in arguing

against application of the career offender enhancement. Therefore,

absent a plea, Barker was exposed to a guideline range of

imprisonment of at least 151 to 188 months.

Had Barker rejected the Government’s binding plea offer and

proceeded to trial, he would have faced daunting odds. At Barker’s

47

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

plea hearing, when the Court explicitly inquired of Barker’s

counsel about possible defenses to the charges in his client’s

case, counsel candidly replied that “[a]ny defense would have been

holding the Government to its burden of proof and attacking the

credibility of the Government witnesses, but the stakes are so

very high that we’re not going to take that risk” (Dkt. No. 328 at

40). If convicted, based on the loss of acceptance of

responsibility, Barker faced a guideline range of 210 to 262 months

of imprisonment.19 Given this exposure, the binding plea agreement

to a sentence of 120 months was clearly in Barker’s best interest.

Nor was this significant reduction in his length of

imprisonment the only benefit Barker obtained from his binding

plea agreement. The Government also agreed to offer binding plea

agreements to sentences of 36 months to his father, Randall Barker,

and his then-girlfriend, Dunigan. This concession was a material,

bargained-for condition of Barker’s plea agreement, indeed one he

19 Even without application of the career offender enhancement, Barker’s

guideline range upon conviction would have been 168 to 210 months of

imprisonment.

48

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

had negotiated hard to obtain; absent this consideration, his then-

girlfriend, Dunigan, faced an advisory guideline range of

imprisonment of 97 to 121 months (Dkt. No. 228 at 6).20 Accordingly,

Barker’s binding plea agreement not only reduced his own term of

imprisonment but also ensured that his father and Dunigan would

receive sentences no greater than 36 months.

From all this, the Court has no difficulty concluding that,

even had counsel advised him that he may not have qualified as a

career offender, Barker cannot demonstrate a “reasonable

probability that . . . he would not have pleaded guilty and would

have insisted on going to trial.” Hill, 474 U.S. at 59. His binding

plea agreement significantly reduced not only his own sentencing

exposure but also that of his co-defendant, Dunigan.

Finally, any argument that the Court would have rejected

Barker’s binding plea agreement had it considered his guideline

range absent the career offender enhancement is wholly without

merit. At Barker’s sentencing, the Court specifically stated:

20 Randall Barker faced an advisory guideline range of 0 to 36 months of

imprisonment (Dkt. No. 260).

49

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

I don’t think the fact that [the binding plea

agreement] modifies what otherwise would be a

career offender sentence is unwarranted or

irrational and I think that this is a

reasonable outcome considering the statutory

factors. Certainly it’s a long enough sentence

for a person that I consider to be dangerous

to the community at large given the nature of

his criminal offenses and it’s what’s

warranted in light of his history and

background and the circumstances of this case.

(Dkt. No. 331 at 8).

Accordingly, because it concluded that a 120-month sentence

was warranted and reasonable under the facts and circumstances of

the case, an argument that Barker was not in fact a career offender

would not have altered the Court’s decision. Barker’s first claim

for ineffective assistance therefore fails under both prongs of

Strickland.

b. Failure to Elicit Testimony at the Plea Hearing

The next ground Barker raises in support of his ineffective

assistance claim fares no better. He pleaded guilty to Attempted

Possession with the Intent to Distribute Para-Fluorofentanyl, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846. “To convict

a defendant of possession with the intent to distribute, the

50

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

government must prove: (1) possession of a narcotic controlled

substance; (2) knowledge of the possession; and (3) the intent to

distribute.” United States v. Collins, 412 F.3d 515, 519 (4th Cir.

2005). “[T]he intent to distribute can be inferred from a number

of factors, including but not limited to: (1) the quantity of the

drugs; (2) the packaging; (3) where the drugs are hidden; and (4)

the amount of cash seized with the drugs.” Id.

Barker argues that, at the plea hearing, his counsel failed

to elicit testimony negating his intent to distribute para-

fluorofentanyl and failed to object to the Court’s acceptance of

his plea agreement (Dkt. No. 306). In support of his argument, he

relies on a Memorandum of Investigation recounting an interview

with a confidential informant who stated that Barker had ceased

selling para-fluorofentanyl following an inmate overdose (Dkt. No.

306-1 at 2).

But at the plea hearing, when the Court inquired of Barker,

“Is it accurate to say that you were attempting to smuggle fentanyl

into the regional jail with the intent to distribute it?” (Dkt.

No. 328 at 39), he answered, “Yes.” Id. And Corporal John Wayne

51

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Smith, Jr., testified that during his investigation he learned

that inmates at North Central Regional Jail had overdosed on para-

fluorofentanyl distributed by Barker (Dkt. No. 328 at 36-38).

Given Barker’s sworn admission at the plea hearing, any

argument that he lacked the intent to distribute para-

fluorofentanyl would have failed, for not only did Barker admit to

smuggling para-fluorofentanyl into the regional jail with the

intent to distribute it, Corporal Smith also confirmed that Barker

was the source of the para-fluorofentanyl on which inmates had

overdosed. In the face of such evidence, an unsworn statement from

a confidential informant would have been insufficient to negate

Barker’s sworn admission of intent. And “[a]n attorney’s failure

to raise a meritless argument [ ] cannot form the basis of a

successful ineffective assistance of counsel claim[.]” Kimler, 167

F.3d at 893. 21

21 It is also worth noting that the Court would not have accepted his

plea had Barker denied an element of the offense. Brady v. United States,

397 U.S. 742, 748 (1970) (“Central to the plea and the foundation for

entering judgment against the defendant is the defendant’s admission in

open court that he committed the acts charged in the indictment.”)

52

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Accordingly, when taking into account the “strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance,” Strickland, 466 U.S. at 689, it is clear

any decision by Barker’s counsel not to elicit testimony or not to

object to the Government’s evidence at the plea hearing was

objectively reasonable. Barker’s second claim for ineffective

assistance therefore fails.

3. Prosecutorial Misconduct

Barker argues that the Government engaged in prosecutorial

misconduct by misrepresenting that he had sent more than $60,000

to Chinese companies to purchase synthetic drugs. He does not deny

dealing with Chinese companies but rather claims the actual amount

involved was less than $27,000.

To prevail on a claim of prosecutorial misconduct, a

petitioner must establish that (1) the Government’s alleged

misconduct was improper, and (2) that the alleged misconduct

prejudiced him. See United States v. Allen, 491 F.3d 178, 191 (4th

Cir. 2007). Here, regardless of whether the Government’s conduct

was improper, Barker cannot demonstrate any prejudice. This is

53

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

because the discrepancy in the amount of money Barker sent to China

would not have altered his sentence.

First, because Barker did not receive a guideline sentence,

any error in the determination of his relevant conduct had no

impact on his sentence. Moreover, but for the terms of his binding

plea agreement Barker would have been a career offender. And under

the career offender guideline his offense level would not have

been determined by a disputed amount of relevant conduct. U.S.S.G.

§ 4B1.1(b).

Even setting aside these two points, Barker’s argument is

without merit. Using the disputed $60,000 figure, the probation

officer initially determined, without objection, that Barker’s

drug relevant conduct was between 1,000 kilograms and 3,000

kilograms of marijuana equivalent (Dkt. No. 221 at 4-5). She

derived this figure from known drug purchases that had occurred

during the conspiracy. Id. In particular, she calculated that the

alleged $60,000 purchased roughly 6,000 grams of MAM-2201. Id.

When converted to marijuana equivalent, that equated to 1,002

kilograms of drug weight. Id.

54

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Barker’s relevant conduct also included his distribution of

para-fluorofentanyl, the drug charged in his offense of

conviction. Id. Although the probation officer acknowledged that

she was unable to ascertain the precise amount of para-

fluorofentanyl Barker distributed, she could conservatively

estimate from the investigative materials that at least 1,000

kilograms of marijuana equivalent was involved. Id. Using this

amount of para-fluorofentanyl, and based on a total drug weight of

at least 2,002 kilograms of marijuana equivalent, she calculated

Barker’s base offense level as a 30. U.S.S.G. § 2D1.1(c)(5).

Subsequent to his sentencing, and as part of his § 2255

motion, Barker produced evidence that he had only sent $26,344 to

China to purchase MAM-2201 (Dkt. No. 315).22 And he also argued

that the drug weight for the para-fluorofentanyl was a precise

amount, 3.5 grams, thus making his total drug weight only 448.63

22 In a letter to the West Virginia Office of Disciplinary Counsel, the

Government acknowledged the discrepancy, but denied Barker’s allegation

of misconduct (Dkt. No. 351).

55

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

kilograms of marijuana equivalent, which yields a base offense

level of 26. U.S.S.G. § 2D1.1(c)(7).

Barker’s argument is unpersuasive. Even assuming he only

purchased $26,344 of MAM-2201 from China, Barker has failed to

establish that he is only responsible for 3.5 grams of para-

fluorofentanyl. Indeed, in light of the Government’s evidence of

the amount of para-fluorofentanyl involved in the case, Barker’s

base offense level would not change, notwithstanding a reduction

in the amount of money he sent to China to purchase MAM-2201.

To begin, Barker does not dispute that he purchased $26,344

of MAM-2201 from China. This alone equates to a drug weight of

roughly 439.88 kilograms of marijuana equivalent. His argument

therefore depends entirely on his claim that he is only responsible

for 3.5 grams of para-fluorofentanyl, or 8.75 kilograms of

marijuana equivalent. But this claim does not hold up on close

scrutiny. Although the probation officer stated that she was unable

to calculate a precise amount of para-fluorofentanyl, based on the

evidence supporting the Government’s version of the offense she

was able to estimate a drug weight of at least 1,000 kilograms of

56

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

marijuana equivalent, far more than the 8.75 kilograms claimed by

Barker (Dkt. No. 221 at 5).

And it bears noting that this is an extremely conservative

estimate. The Government’s case file established that Barker was

actually responsible for 1,003.5 kilograms of fentanyl, or

2,508.75 kilograms of marijuana equivalent (Dkt. No. 380 at 7-8).23

To arrive at that total, it first calculated the amount of fentanyl

Barker introduced into North Central Regional Jail (Dkt. No. 380-

1). This included two packages, one of which was the package

intercepted on September 14, 2016, the other the controlled

delivery completed on November 13, 2016. Id. Together, these

yielded the 3.5 grams of para-fluorofentanyl for which Barker

acknowledges responsibility. Id. But the Government file also had

evidence obtained from a confidential informant that Barker had

purchased an additional kilogram of fentanyl (Dkt. No. 380-2).

With this additional drug weight, the Government was able to

23 Although this evidence was produced in response to Barker’s motion for

compassionate release, the Court finds it applicable to his § 2255

petition because both raise similar claims.

57

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

attribute a total of 1,003.5 kilograms of fentanyl, or 2,508.75

kilograms of marijuana equivalent, to Barker.

Even calculating Barker’s offense level using the corrected

amount of funds for MAM-2201 and the probation officer’s

conservative amount of para-fluorofentanyl, rather than the

Government’s larger estimate, Barker’s total drug relevant conduct

is at least 1,439.88 kilograms of marijuana equivalent. And under

U.S.S.G. § 2D1.1(c)(5), this drug weight results in a base offense

level of 30, as originally calculated by the probation officer.

Accordingly, Barker’s base offense level remains unchanged

regardless of the amount of money he sent to China.

Even accepting Barker’s argument that he distributed only 3.5

grams of para-fluorofentanyl, he was appropriately classified as

a career offender at the time of his sentence. And under that

guideline his offense level, before any adjustment for acceptance

of responsibility, was a minimum of 32 regardless of drug weight.

U.S.S.G. § 4B1.1(b). Accordingly, a lower drug weight would not

have reduced Barker’s offense level or his advisory guideline

range.

58

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Barker therefore cannot establish prejudice as a result of

any Government error. Because he was sentenced under a binding

plea agreement, any guideline error would not have impacted his

sentence. Similarly, as a career offender, his offense level would

not have been calculated using his drug relevant conduct. And

finally, even correcting the amount of money Barker paid for MAM-

2201 does not change his base offense level. His claim for

prosecutorial misconduct thus fails.24

4. Waiver of Claims in Plea Agreement

In his plea agreement, Barker waived his right to collaterally

attack his conviction or sentence or the manner in which the Court

calculated his sentence (Dkt. No. 205 at 4). “[A] criminal

defendant may waive his right to attack his conviction and sentence

collaterally, so long as the waiver is knowing and voluntary.”

United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005).

24 Any allegation that Barker’s counsel was ineffective for failing to

object to the discrepancy over the amount of money sent to China is

without merit as Barker suffered no prejudice from the discrepancy.

59

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Fed. R. Crim. P. 11 requires the Court to determine whether

the defendant accepts a plea voluntarily, without force, threats,

or promises. To do so, the Court must find that a defendant who

pleads guilty understands the nature of the charge and is aware of

the consequences of his plea. McCarthy v. United States, 394 U.S.

459, 464 (1969). “The representations of the defendant . . . as

well as any findings made by the judge accepting the plea,

constitute a formidable barrier in any subsequent collateral

proceeding.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Here, at his plea hearing Barker stated that he understood

and agreed with the Government’s summary of the terms of his plea

agreement (Dkt. No. 328 at 18). He also confirmed that his plea

was not the result of any undisclosed promises, threats, or

harassment. Id. at 39. Moreover, Barker’s counsel represented that

he was satisfied Barker understood the terms of his plea agreement.

Id. at 35. And finally, after conducting an extensive colloquy

with Barker about the terms of his plea agreement, id. at 19-35,

the Court concluded that his plea was knowing, informed, freely

given, and voluntary. Id. at 40.

60

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

While the Fourth Circuit’s decision in Campbell undoubtedly

has changed the nature of the offenses that qualify for the career

offender enhancement in the Fourth Circuit, any argument that this

recent change makes Barker’s plea in 2017 unknowing is without

merit. Although not sentenced as such, Barker (1) was appropriately

categorized as a career offender at the time of his sentencing,

(2) was accurately informed of the state of the law at the time,

and (3) knowingly pleaded guilty. See United States v. Archie, 771

F.3d 217, 223 (4th Cir. 2014) (holding that “defendants cannot

knowingly and voluntarily enter an appeal waiver, receive a

sentence that fully complies with the law applicable at the time

of sentencing, and then, when that law later changes, argue that

the issue falls outside the binding scope of the waiver”).25

Even if Barker had not knowingly and voluntarily waived his

right to challenge claims other than ineffective assistance of

counsel or prosecutorial misconduct, such claims would still fail

because Barker erroneously argues he was sentenced as a career

25 Although Archie addressed appellate waivers, the Court finds no reason

to depart from its holding in the context of collateral attack waivers.

61

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

offender. As has been discussed at length, however, he was

sentenced pursuant to a bargained-for, binding plea agreement that

included material benefits to him, his then-girlfriend, and his

father.

But even if Barker had been sentenced as a career offender,

he undoubtedly qualified for the enhancement at the time. “[A]

career-offender enhancement that is later invalidated by case law

is not a miscarriage of justice” resulting in a cognizable habeas

claim. United States v. Fallin, No. 20-7702 (4th Cir. July 14,

2022); see also United States v. Foote, 784 F.3d 931, 935-36 (4th

Cir. 2015) (holding that “sentencing a defendant pursuant to

advisory Guidelines based on a career offender status that is later

invalidated” does not raise a cognizable claim under 28 U.S.C.

§ 2255).

Barker also contends that the Court erroneously accepted his

guilty plea without evidence of his intent to distribute para-

fluorofentanyl. But, again, as has been discussed, supra pp. 50-

53, based on his sworn admission, the evidence is otherwise. And,

finally, Barker argues he is actually innocent because fentanyl

62

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

analogues, such as para-fluorofentanyl, can trigger false

positives for controlled substances. He cites no authority for

this proposition, but simply asserts that “this is not uncommon.”

Without more than these conclusory allegations, Barker cannot

establish by a preponderance of the evidence that the drug test

results in his case were in fact false positives.

In sum, Barker has failed to overcome the “formidable barrier”

erected by his own informed and knowing statements made during his

plea colloquy when he admitted to the elements of his offense.

Consequently, the Court concludes that, pursuant to the terms of

his binding plea agreement, Barker knowingly and voluntarily

waived his right to collaterally attack his conviction or sentence,

or the manner in which the Court calculated his sentence.

5. Remaining Motions

On November 1, 2019, Barker filed a motion to expedite a

ruling on the pleadings (Dkt. No. 283). Because the Court has ruled

on his § 2255 petition, it DENIES that motion AS MOOT.

Subsequently, on April 30, 2020, Barker moved to stay this action

pending a ruling on his motion to correct his presentence report

63

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

pursuant to Fed. R. Crim. P. 36 (Dkt. No. 298). Because the Court

has already ruled on that motion, it also DENIES that motion AS

MOOT.

E. Conclusion

For the reasons discussed, the Court DENIES Barker’s § 2255

petition (Dkt. No. 269) and DISMISSES Civil Action Number 1:19CV134

WITH PREJUDICE. Because the record conclusively establishes that

Barker is not entitled to relief, there is no need for the Court

to conduct an evidentiary hearing. 28 U.S.C. § 2255(b); see Raines

v. United States, 423 F.2d 526, 530 (4th Cir. 1970).

E. Certificate of Appealability

Pursuant to Rule 11(a) of the Rules Governing § 2255 Cases,

the district court “must issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” If the court denies the certificate, “the parties may

not appeal the denial but may seek a certificate from the court of

appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C.

foll. § 2255(a). The Court finds it inappropriate to issue a

certificate of appealability in this matter because Barker has not

64

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

made a “substantial showing of the denial of a constitutional

right.” See 28 U.S.C. § 2253(c)(2).

A petitioner satisfies this standard by demonstrating that

reasonable jurists would find that any assessment of the

constitutional claims by the district court is debatable or wrong,

and that any dispositive procedural ruling by the district court

is likewise debatable. See Miller–El v. Cockrell, 537 U.S. 322,

336–38 (2003). Upon review of the record, the Court concludes that

Barker has failed to make the requisite showing, and DENIES a

certificate of appealability.

III. MOTION FOR COMPASSIONATE RELEASE

A. Background

On November 15, 2021, Barker filed a pro se motion for

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)

(Dkt. No. 372). In support, he echoes the claims asserted in his

habeas petition that he was improperly sentenced as a career

offender and that the Court incorrectly calculated his relevant

conduct. Id. He adds to this that he is not a danger to the

community and is capable of becoming a productive citizen. Id.

65

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Finally, he expresses a desire to care for his ailing father and

to provide guidance to his daughter. Id. The Government disputes

Barker’s entitlement to compassionate release (Dkt. No. 380).

Barker has filed numerous documents in support of his motion.

Before the Government even responded, he had filed three

supplemental citations of authority (Dkt. Nos. 375, 378, 379). And

after filing his reply, he filed three more supplemental citations

(Dkt. Nos. 386, 387, 394). He also has filed two documents with

supplemental documentary evidence in support of his motion (Dkt.

Nos. 392, 400). Finally, he filed an addendum to his compassionate

release motion (Dkt. No. 389), a supplemental memorandum of law

(Dkt. No. 393), and a supplemental letter of achievement (Dkt. No.

398).

B. Applicable Law

Once imposed, a court may only modify a term of imprisonment

in limited circumstances. See United States v. McCoy, 981 F.3d 271

(4th Cir. 2020). One of those circumstances is compassionate

release pursuant to 18 U.S.C. § 3582, which permits courts to

reduce a term of imprisonment if (1) a defendant exhausts all

66

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

administrative remedies; (2) an extraordinary and compelling

reason for a sentence reduction exists; and (3) a sentence

reduction is consistent with all relevant sentencing factors

listed in 18 U.S.C. § 3553(a). See United States v. High, 997 F.3d

181, 185-86 (4th Cir. 2021).

C. Discussion

1. Administrative Exhaustion

Barker represents that, on October 12, 2021, in accord with

the policy at USP Leavenworth, he submitted his request for

compassionate release to a member of his unit team (Dkt. No. 372

at 2). Consequently, because more than 30 days has passed since

that submission, Barker argues he has satisfied the exhaustion

requirement in 18 U.S.C. § 3582. Id. The Government has been unable

to confirm or deny Barker’s account, nor has it supplemented its

brief with additional information (Dkt. No. 380 at 6).

The administrative exhaustion requirement of 18 U.S.C. § 3582

is “satisfied if a defendant requests the Bureau of Prisons to

bring a motion [for compassionate release] on [his] behalf and

either fully exhausts all administrative rights to appeal the

67

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Bureau’s decision or waits 30 days from the date of [his] initial

request to file a motion in the district court.” United States v.

Muhammad, 16 F.4th 126, 131 (4th Cir. 2021) (emphasis in original).

Here, Barker submitted his initial request for compassionate

release at USP Leavenworth more than 30 days before filing his

motion with this Court. The Court therefore concludes he has

satisfied the exhaustion requirements in 18 U.S.C. § 3582.

2. Extraordinary and Compelling Reasons

Barker argues that several extraordinary and compelling

reasons justify his release. First, he challenges his sentencing

guideline range, contending he was improperly classified as a

career offender at the time of his sentencing. He also argues that

his relevant conduct was incorrectly calculated. Next, he argues

he is not a danger to the community and is capable of becoming a

productive citizen. Finally, he asserts the need to care for his

father, who suffers from stage four kidney cancer, and to provide

guidance to his teenage daughter.

Section 3582 does not define the phrase “extraordinary and

compelling,” but instead requires that any sentence reduction be

68

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

consistent with the applicable policy statements of the United

States Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(ii); 28

U.S.C. § 944(t) (directing the Sentencing Commission to “describe

what should be considered extraordinary and compelling reasons for

sentence reduction”). In United States v. McCoy, however, the

Fourth Circuit observed that “[t]here is as of now no applicable

policy statement governing compassionate-release motions filed by

defendants under the recently amended 18 U.S.C. § 3582(c)(1)(A).”

981 F.3d at 284 (internal quotation omitted). Thus, “district

courts are empowered . . . to consider any extraordinary and

compelling reason for release that a defendant might raise,” but

the policy statements “remain[] helpful guidance.” Id. at 282 n.7

(emphasis in original).

a. Sentencing Guideline Calculation

Regarding Barker’s contention that he was improperly

classified as a career offender and that his relevant conduct

calculation was incorrect (Dkt. No. 372 at 3-4), the Government

points out that he was sentenced pursuant to a binding plea

agreement, not according to a specific guideline range (Dkt. No.

69

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

380 at 6-7). Alternatively, it argues that Barker’s sentence under

the guidelines would have been greater than the sentence he

actually received. Id. at 7-9. And finally, in a supplement, it

contends that the recent decision in United States v. Campbell, 22

F.4th 438, 443 (4th Cir. 2022), does not aid Barker’s argument

(Dkt. No. 402).

Following McCoy, district courts in this circuit have found

extraordinary and compelling reasons justifying compassionate

release where a defendant likely would have received a dramatically

lower sentence if sentenced today. See, e.g., United States v.

Trice, No. 7:13CR00034-001, 2021 WL 402462, at *2-3 (W.D. Va. Feb.

3, 2021); United States v. Arey, 461 F. Supp. 3d 343, 349-50 (W.D.

Va. 2020); United States v. Decator, 452 F. Supp. 3d 320, 324 (D.

Md. 2020); United States v. Redd, 444 F. Supp. 3d 717, 722-24 (E.D.

Va. 2020).

But as this Court has discussed at length, supra pp. 47-50,

Barker and the Government entered into a bargained-for, binding

plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which

both agreed that the appropriate sentence was a term of

70

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

imprisonment of 120 months (Dkt. No. 205 at 2). At sentencing,

after carefully reviewing the relevant factors, including what his

likely advisory guideline range would have been without the binding

plea agreement, the Court accepted the terms of the binding plea

agreement (Dkt. No. 331 at 9) and imposed a non-guideline sentence

of 120 months (Dkt. No. 222).

Although the Court did not apply the career offender

enhancement, Barker nevertheless contends that, under the state of

the law, either at the time of his sentencing or at present, he is

not subject to the career offender enhancement. And he argues that,

had he known this in 2017, he would have rejected a 120-month

sentence as unreasonable. The Government, however, contends that,

even absent consideration of the career offender enhancement,

Barker’s 120-month sentence was reasonable at the time.

As the Court has previously noted, supra pp. 55-58, without

the career offender enhancement, Barker’s 120-month sentence was

below his otherwise applicable guideline range. Based on a criminal

history category IV, and the probation officer’s estimate of his

drug relevant conduct, Barker’s total offense level would have

71

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

been a 29. Accordingly, his guideline range without the career

offender enhancement would have been 121 to 151 months of

imprisonment.

And even crediting Barker’s meritless argument that his drug

weight only included 3.5 grams of para-fluorofentanyl, his total

offense level would have been a 25. Combined with his criminal

history category IV, Barker’s guideline range would have been 84

to 105 months of imprisonment. Although lower than the 120-month

sentence he actually received,26 courts may conduct “individualized

assessments of each defendant’s sentence” when considering any

sentencing disparity. McCoy, 981 F.3d at 286. Here, as previously

discussed, supra pp. 48-49, as part of his plea agreement, Barker

negotiated a significantly lower sentence for his co-defendant

Dunigan. Moreover, the Court specifically concluded that a 120-

26 Barker relies on the Statement of Reasons in Criminal Action No.

1:16CR31-1 (Dkt. No. 223) to argue that he should receive a “variance”

from this guideline range equivalent to the “variance” he received from

his career offender guideline range. But Barker did not receive a

guideline variance in Criminal Action No. 1:16CR31-1. He was sentenced

pursuant to a binding plea agreement.

72

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

month term of imprisonment was warranted and reasonable given the

serious nature of Barker’s criminal activity.

Accordingly, any contention a dramatic disparity exists that

constitutes an extraordinary and compelling reason to grant Barker

compassionate release is without merit.

b. Danger to the Community

Given that protection of the public is a factor to be

considered under 18 U.S.C. § 3553(a), the Court will address

Barker’s argument on this point when it considers whether those

factors are consistent with his release.

c. Family Circumstances

Turning to Barker’s argument that he needs to care for his

father who has suffered from stage four cancer for some time, and

also wants to provide guidance to his teenage daughter (Dkt. No.

372), the Government contends that (1) Barker’s family

circumstances do not warrant compassionate release, and (2) he

fails to meet the relevant criteria in U.S.S.G. § 1B1.13 cmt.

n.1(C) (Dkt. No. 380 at 9).

73

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

While “district courts are empowered . . . to consider any

extraordinary and compelling reason for release that a defendant

might raise,” the policy statements “remain[] helpful guidance.”

McCoy 981 F.3d at 282 n.7 (emphasis in original). Under the non-

binding policy statement for a reduction in the term of

imprisonment under 18 U.S.C. § 3582(c)(1)(A), family circumstances

constitute an extraordinary and compelling reason for

compassionate release in the following instances: (1) “[t]he death

or incapacitation of the caregiver of the defendant’s minor child

or minor children;” and (2) “[t]he incapacitation of the

defendant’s spouse or registered partner when the defendant would

be the only available caregiver for the spouse or registered

person.” U.S.S.G. § 1B1.13 cmt. n.1(C).

Here, Barker’s father’s kidney cancer has been successfully

treated as a chronic disease for several years,27 a circumstance

that does not fit neatly into either of the categories outlined in

U.S.S.G. § 1B1.13 cmt. n.1(C). And Barker’s argument is

27 On May 5, 2021, the Court terminated Randall Barker’s term of probation

early in part to aid his cancer treatment (Dkt. No. 350).

74

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

unpersuasive because he has not provided any evidence that his

grandmother is unable to continue caring for her son, whether in

West Virginia or in Florida.

Next, Barker expresses a general desire to care for his

daughter by providing guidance regarding her schooling and career.

This situation also does not fit any of the categories outlined in

U.S.S.G. § 1B1.13 cmt. n.1(C). While the Court recognizes that it

is not bound by that policy statement, it finds Barker’s general

desire to help his daughter does not constitute an extraordinary

and compelling reason supporting compassionate release. Moreover,

Barker has been able to provide guidance to his daughter even while

incarcerated.

Accordingly, even without limiting extraordinary and

compelling reasons solely to those outlined in U.S.S.G. § 1B1.13

cmt. n.1(C), the Court finds that Barker’s family circumstances do

not warrant compassionate release.

3. Sentencing Factors Pursuant to 18 U.S.C. § 3553(a)

Even if Barker could demonstrate that extraordinary and

compelling reasons exist justifying his early release, the

75

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Government contends such release would not be in accord with the

§ 3553(a) factors (Dkt. Nos. 380 at 10-11). Barker emphasizes his

accomplishments while incarcerated and argues that he no longer

poses a danger to the community and is capable of becoming a

productive citizen (Dkt. No. 372 at 4-6). Moreover, he contends

that his sentence is disproportionate to those of his co-defendants

(Dkt. No. 383 at 9-10).

Any decision to release an inmate pursuant to

§ 3582(c)(1)(A)(i) must be consistent with the relevant sentencing

factors that require the Court to impose a sentence “sufficient,

but not greater than necessary” to satisfy the purposes of

sentencing. 18 U.S.C. § 3553(a). Relevant factors include the

nature and circumstances of the offense, the defendant’s history

and characteristics, and whether the sentence imposed reflects the

seriousness of the offense, promotes respect for the law, deters

criminal conduct, and protects the public from future crime. Id.

76

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

Even acknowledging his recent educational accomplishments and

his current PATTERN28 score, granting Barker compassionate release

would not accord with the § 3553(a) factors. He is not scheduled

to be released until April 25, 2025,29 and his lengthy criminal

history, which includes an uninterrupted pattern of serious

criminal behavior over at least a decade, places Barker at high

risk of recidivism. Consideration of his most recent offense, which

concerned the sale of controlled substances in prisons throughout

the United States, including while he was incarcerated,

underscores this point. These activities led to overdoses by his

fellow inmates, including his cellmate. Contrary to his contention

that he has left a lifetime of criminal behavior behind and plans

to find work as a paralegal, the Court concludes that Barker’s

release three (3) years before the conclusion of his sentence would

endanger the public, fail to promote respect for the law, and would

28 PATTERN, which stands for Prisoner Assessment Tool Targeting Estimated

Risk and Needs, is a BOP risk assessment tool. PATTERN Risk Assessment,

Fed. Bureau of Prisons, https://www.bop.gov/inmates/fsa/pattern.jsp

(last visited July 13, 2022).

29 Find an Inmate, Fed. Bureau of Prisons, www.bop.gov/inmateloc/

(results for Register No. 06784-088) (last visited July 13, 2022).

77

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

not serve to deter similar criminal conduct. Moreover, any

sentencing disparity between Barker and his co-defendants, Randall

Barker and Dunigan, is a consequence of Barker’s bargained-for,

binding plea agreement and also reflects the differences in their

respective criminal histories. Accordingly, even if Barker could

demonstrate extraordinary and compelling reasons, his early

release would not be consistent with the factors under § 3553(a).

D. Conclusion

For the reasons discussed, the Court DENIES WITHOUT PREJUDICE

Barker’s motion for compassionate release (Dkt. Nos. 372).

IV. VARIOUS PRO SE CRIMINAL MOTIONS

A. Background

On September 3, 2021, the Court entered a Memorandum Opinion

and Order disposing of numerous pro se criminal motions filed by

Barker (Dkt. No. 356). Following that decision, Barker filed a

notice of appeal (Dkt. No. 361), which included a motion for

appointment of counsel to prosecute that appeal (Dkt. No. 362).

And a few days later, he moved this Court to reconsider its

78

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

September 3, 2021 ruling (Dkt. No. 366). He then filed three

supplements to that motion (Dkt. Nos. 371, 376, 385).

Subsequently, on December 16, 2021, Barker moved for

discharge from the “illegal forfeiture contract” in his plea

agreement (Dkt. No. 381). Then, on January 19, 2022, he moved for

an order directing the Clerk to directly provide him with copies

of documents from his criminal case (Dkt. No. 388).

B. Motion for Appointment of Counsel on Appeal

The decision whether to appoint counsel on appeal rests with

the Fourth Circuit. L.R. 4th Cir. 46(d). Accordingly, the Court

DENIES Barker’s motion (Dkt. No. 362), and notes that he should

file such motion with the Fourth Circuit, where his appeal is

lodged.

C. Motion for Reconsideration and Motion for Discharge from

Forfeiture Agreement

Barker proffers four (4) grounds in support of his motion to

reconsider the September 3, 2021 Memorandum Opinion and Order (Dkt.

No. 366). None of these is persuasive.

79

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

First, Barker contends that, under Fed. R. Crim. P.

32.2(b)(1), the property forfeited under his plea agreement lacks

the requisite nexus to his offense of conviction. According to

Barker, the forfeited property is only connected to one of his

charged offenses. Barker’s motion for discharge from the “illegal

forfeiture contract” in his plea agreement also raises this same

argument (Dkt. No. 381). The Court therefore construes these

arguments as a second motion for reconsideration of this issue.

As the Court noted in its previous decision, “Barker agreed

to forfeit these assets as part of a binding plea agreement” (Dkt.

No. 356 at 31-32). Also as part of that same plea agreement Barker

waived the requirements of Fed. R. Crim. P. 32.2 (Dkt. No. 205 at

3). Accordingly, based on the bargained-for terms of Barker’s plea

agreement, the Court finds no reason to reconsider its ruling on

this point.

Next, Barker argues that both the career offender designation

and $60,000 figure in his presentence report are clerical errors

that the Court should have remedied under Fed. R. Crim. P. 36. But

these are substantive, not clerical, issues that the Court has

80

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

addressed in detail in its decision on Barker’s § 2255 petition,

where it concluded that (1) at the time the presentence report was

written, Barker qualified as a career offender, supra pp. 45-47,

and (2) although Barker sent $26,344, not $60,000, to China to

purchase MAM-2201, any discrepancy about the amount of money did

not affect his base offense level. Supra pp. 53-59.

Finally, Barker claims that this Court erred in declining to

hold the evidentiary hearing he requested to address arguments he

raised pursuant to Fed. R. Crim. P. 36. Specifically, he argues

that the Court erroneously adopted $60,000 as the amount of money

he sent to China to purchase MAM-2201. But as explained above,

supra pp. 53-59, even as corrected, that discrepancy would not

materially impact the guideline range in Barker’s presentence

report. The Court therefore again concludes that an evidentiary

hearing is not warranted.

In conclusion, the Court DENIES Barker’s motion for

reconsideration (Dkt. No. 366). But based on the reference to an

incorrect amount of money to purchase MAM-2201 Barker sent to China

in the presentence report, it DIRECTS the probation office to file

81

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

an amended presentence report reflecting that Barker actually sent

$26,344 to China for such purchases.

The Court also DENIES Barker’s motion for discharge from the

“illegal forfeiture contract” in his plea agreement (Dkt. No. 381).

D. Motion for an Order Directing the Clerk to Provide Him with

Copies of Documents from His Criminal Case

Lastly, Barker has moved for an order directing the Clerk to

provide him with copies of documents from his criminal case (Dkt.

No. 388). Specifically, he requests that, in order to make the

process more efficient, these documents be sent directly to him

instead of to the warden of his correctional facility. Id. The

Court concludes that the inconvenience alleged by Barker does not

constitute a sufficient reason for it to deviate from its standard

practice of sending mail to the warden of the facility at which a

defendant is incarcerated and accordingly DENIES Barker’s motion

(Dkt. No. 388).

V. CONCLUSION

For the foregoing reasons, the Court

82

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

1. GRANTS Barker’s motions to amend his § 2255 petition

(Dkt. Nos. 306, 315, 343);

2. GRANTS Barker’s motion for citation of supplemental

authority (Dkt. No. 277);

3. DENIES AS MOOT Barker’s motion to expedite a ruling on

the pleadings (Dkt. No. 283), and Barker’s motion to

stay this action pending a ruling on his motion to

correct his presentence report pursuant to Fed. R. Crim.

P. 36 (Dkt. No. 298);

4. DENIES Barker’s § 2255 petition (Dkt. No. 269) and

DISMISSES Civil Action Number 1:19CV134 WITH PREJUDICE;

5. DENIES Barker’s motion for compassionate release WITHOUT

PREJUDICE (Dkt. Nos. 372);

6. DENIES AS MOOT Barker’s motion for appointment of

counsel (Dkt. No. 362);

7. DENIES Barker’s motion for reconsideration (Dkt. No.

366), but, consistent with the findings herein, DIRECTS

the probation office to file an amended presentence

83

BARKER v. UNITED STATES 1:19CV134/1:16CR31-1

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

report correcting the amount of money Barker sent to

Chinese companies to pu

This text is long and has been trimmed here. Open the source document for the complete record.