Opinion
Civil Action No. 1:06CV163, Criminal Action No. 1:02CR27.
July 27, 2007
ORDER AFFIRMING REPORT AND RECOMMENDATION, AND SETTING EVIDENTIARY HEARING
On April 27, 2004, a jury convicted the pro se petitioner, Benjamin Franklin Scott ("Scott"), of being a felon in possession of a firearm. On November 8, 2006, pursuant to 28 U.S.C. § 2255, Scott filed a motion to vacate, set aside, or correct his federal sentence on the grounds of ineffective assistance of counsel and prosecutorial misconduct.
In a third argument, Scott also seeks the retroactive application of a two-level sentence reduction for acceptance of responsibility under the United States Sentencing Guidelines.
In its response to Scott's motion, the government requested that the Court schedule an evidentiary hearing to resolve the factual issues raised in the petition. In Scott's subsequent reply, he concurred in the government's request for an evidentiary hearing. On December 28, 2006, United States Magistrate Judge John S. Kaull issued a Report and Recommendation ("R R") recommending that the parties' requests for an evidentiary hearing be granted, and further, that Scott's pending request to proceed as a pauper be granted and that counsel be appointed to represent him at the evidentiary hearing. On March 29, 2007, Scott filed a response reiterating his request for an evidentiary hearing, if the Court determined that his due process rights had not been violated by the government's original request for an evidentiary hearing. The Court finds no such violation.
On March 13, 2007, Scott filed a separate document styled "Petitioner's Objection", objecting to the government's alleged interview of a witness Scott apparently intends to call in support of his § 2255 motion. (Doc. No. 11.) Although docketed as an "objection", the Court finds that the document raises no objection to the R R, but rather raises issues appropriate to address at the forthcoming evidentiary hearing.
Accordingly, the Court AFFIRMS the magistrate judge's R R (doc. no. 7), GRANTS Scott's motion for leave to proceed in forma pauperis (doc. no. 2), SCHEDULES an evidentiary hearing on Scott's § 2255 motion for Friday, August 24, 2007 at 1:30 p.m. at the Clarksburg, West Virginia, point of holding court, and APPOINTS attorney Deanna Pennington to represent Scott at that hearing.
The Clerk is directed to transmit copies of this Order to counsel of record, the defendant and all appropriate agencies.