Owens v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v. 	CRIMINAL NO. 1:16-CR-61
(KLEEH)
RUSSELL CARY OWENS,
Defendant.
RUSSELL CARY OWENS,
Petitioner,
v. 	CIVIL NO. 1:25-CV-70
(KLEEH)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
Pending before the Court is a petition under 28 U.S.C. § 2255
filed by Russell Cary Owens (“Owens”). 	For the reasons discussed
herein, the petition is DENIED and DISMISSED with prejudice.
I. 	BACKGROUND
On 	August 	17, 	2016, 	the 	grand 	jury 	returned 	a 	one-count
indictment 	charging 	Owens 	with 	being 	a 	Prohibited 	Person 	in
Possession 	of 	a 	Firearm, 	in 	violation 	of 	18 	U.S.C. 	§§ 	922(g)(1)
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
2
and 924(a)(2). 	See ECF No. 1.1 	The indictment alleged that Owens
was 	prohibited 	from 	possessing 	a 	firearm 	due 	to 	two 	prior 	felony
convictions: (1) False Statement to Obtain Property or Credit and
(2) Bank Fraud. 	See id.
On 	November 	2, 	2016, 	pursuant 	to 	a 	written 	plea 	agreement,
Owens 	pleaded 	guilty 	to 	Count 	One. 	See 	ECF 	No. 	27. 	On 	March 	1,
2017, 	the 	Court 	sentenced 	Owens 	to 	a 	period 	of 	12 	months 	of
incarceration, to run consecutively to any state sentence imposed.
See 	ECF 	No. 	43. 	The 	Court 	also 	imposed 	a 	two-year 	period 	of
supervised release. 	See id. 	Owens did not appeal his conviction
and 	sentence. 	On 	July 	28, 	2025, 	Owens 	filed 	a 	pro 	se 	petition
under 28 U.S.C. § 2255 (the “Petition”). 	See ECF No. 52. 	In it,
he 	argues 	that 	his 	counsel 	was 	ineffective 	by 	failing 	to
investigate 	and 	discover 	evidence 	of 	his 	service-related
psychological and neurological issues. 	See id. 	Owens also filed
a 	motion 	requesting 	appointment 	of 	counsel. 	See 	ECF 	No. 	56. 	On
August 21, 2025, Owens filed his Petition on a Court-approved form.
See 	ECF 	No. 	61. 	On 	September 	29, 	2025, 	the 	Magistrate 	Judge
entered a Report and Recommendation (“R&R”) recommending that the
Court deny and dismiss the Petition. 	See ECF No. 62. 	Owens filed
1 Unless otherwise noted, all docket numbers refer to Criminal Action No. 1:16-
CR-61.
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
3
a motion to exceed the page limit for objections to the R&R, which
the 	Court 	hereby 	grants. 	See 	ECF 	No. 	67. 	The 	Court 	will 	fully
consider 	Owens’s 	objections 	filed 	at 	ECF 	No. 	68. 	It 	notes 	that
Owens references an additional “38 pages” of objections, which are
not 	on 	the 	docket. 	Still, 	as 	discussed 	below, 	the 	Court 	will
conduct a de novo review of the R&R.
II. 	REPORT AND RECOMMENDATION AND OBJECTIONS
In 	the 	R&R, 	the 	Magistrate 	Judge 	first 	recommends 	that 	the
Court 	deny 	Owens’s 	request 	for 	counsel. 	He 	then 	finds 	that 	the
Petition fails on the merits and recommends that it be denied.
The R&R informed the parties that they had fourteen (14) days
from 	the 	date 	of 	service 	of 	the 	R&R 	to 	file 	“specific 	written
objections, 	identifying 	the 	portions 	of 	the 	Report 	and
Recommendation 	to 	which 	objection 	is 	made, 	and 	the 	basis 	of 	such
objection.” 	R&R, 	ECF 	No. 	62, 	at 	9. 	It 	further 	warned 	them 	that
the 	“[f]ailure 	to 	file 	written 	objections . . . shall 	constitute
a 	waiver 	of 	de 	novo 	review 	by 	the 	District 	Court 	and 	a 	waiver 	of
appellate review by the Circuit Court of Appeals.” 	Id.
When reviewing a magistrate judge’s R&R, the Court must review
de 	novo 	only 	the 	portions 	to 	which 	an 	objection 	has 	been 	timely
made. 	28 U.S.C. § 636(b)(1)(C). 	Otherwise, “the Court may adopt,
without 	explanation, 	any 	of 	the 	magistrate 	judge’s
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
4
recommendations” to which there are no objections. 	Dellarcirprete
v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing
Camby 	v. 	Davis, 	718 	F.2d 	198, 	199 	(4th 	Cir. 	1983)). 	Courts 	will
uphold portions of a recommendation to which no objection has been
made 	unless 	they 	are 	clearly 	erroneous. 	See 	Diamond 	v. 	Colonial
Life & Accident 	Ins. 	Co., 	416 	F.3d 	310, 	315 	(4th 	Cir. 	2005). 	On
December 15, 2025, Owens filed objections to the R&R. 	See ECF No.
68. 	Out 	of 	an 	abundance 	of 	caution, 	the 	Court 	will 	conduct 	a 	de
novo review of the R&R.
III. DISCUSSION
As 	discussed 	below, 	the 	Court 	agrees 	with 	the 	Magistrate
Judge’s conclusions. 	Even assuming, as the Magistrate Judge does,
that the Petition is timely, it fails.
Owens asserts that his counsel was ineffective by failing to
investigate 	and 	discover 	evidence 	of 	his 	service-related
psychological and neurological issues. 	He asserts that the issues
had a “significant impact on his cognitive and executive function
at 	the 	time 	of 	his 	crime(s) . . . thereby 	mitigating 	the 	outcome
of his proceedings.” 	See ECF No. 61 at 6. 	On December 31, 2024,
he received a diagnosis of PTSD “stemming from a history of combat
and training related traumas.” 	Id. 	On February 24, 2025, he was
diagnosed with “T2 prolongation of periventricular and subcortical
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
5
white matter likely from a seauela of chronic small vessel ischemic
disease, 	encephalomacia 	with 	gliosis 	of 	the 	right 	parieto-
occipital 	region, 	consistent 	with 	chronic 	right 	PCA 	(posterior
cerebral 	infact) 	territory 	infarct.” 	Id. 	These 	issues 	were
unknown at the time of his criminal case.
Pursuant 	to 	28 	U.S.C. 	§ 	2255, 	a 	prisoner 	may 	file 	a 	motion
challenging 	the 	sentence 	imposed 	by 	a 	federal 	court 	“if 	(1) 	the
sentence 	violates 	the 	Constitution 	or 	laws 	of 	the 	United 	States;
(2) 	the 	sentencing 	court 	lacked 	jurisdiction 	to 	impose 	the
sentence; 	(3) 	the 	sentence 	exceeds 	the 	statutory 	maximum; 	or 	(4)
the sentence ‘is otherwise subject to collateral attack.’” 	Beyle
v. United States, 269 F. Supp. 3d 716, 725 (E.D. Va. 2017) (quoting
28 	U.S.C. 	§ 	2255(a)). 	“A 	sentence 	is 	‘otherwise 	subject 	to
collateral 	attack’ 	if 	a 	petitioner 	shows 	that 	the 	proceedings
suffered from ‘a fundamental defect which inherently results in a
complete miscarriage of justice.’” 	Id. (quoting United States v.
Addonizio, 	442 	U.S. 	178, 	185 	(1979)). 	“A 	petitioner 	bears 	the
burden 	of 	proving 	one 	of 	those 	grounds 	by 	a 	preponderance 	of 	the
evidence.” 	Id. (citing Miller v. United States, 261 F.2d 546, 547
(4th 	Cir. 	1958)). 	“If 	he 	satisfies 	that 	burden, 	the 	court 	may
vacate, set aside, or correct the sentence.” 	Id. (citing 28 U.S.C.
§ 	2255(b)). 	“However, 	if 	the 	motion, 	when 	viewed 	against 	the
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
6
record, 	shows 	that 	the 	petitioner 	is 	entitled 	to 	no 	relief, 	the
court may summarily deny the motion.” 	Id. (citing Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970)).
The 	Court 	notes 	that 	pro 	se 	allegations 	are 	held 	to 	a 	less
stringent 	standard 	than 	those 	drafted 	by 	lawyers 	and 	must 	be
liberally 	construed. 	See 	Haines 	v. 	Kerner, 	404 	U.S. 	519, 	520
(1972).
A. 	Appointment of Counsel
The United States Court of Appeals for the Fourth Circuit has
recognized that “[t]here is no right to counsel in post-conviction
proceedings.” 	Hagie 	v. 	Pinion, 	995 	F.2d 	1062 	(4th 	Cir. 	1993)
(unpublished) 	(citing 	Pennsylvania 	v. 	Finley, 	481 	U.S. 	551, 	556–
57 	(1987)). 	The 	Court 	agrees 	with 	the 	Magistrate 	Judge 	on 	this
question, 	finds 	that 	the 	appointment 	of 	counsel 	is 	not 	warranted
in this case, and denies the motion to appoint counsel.
B. 	Ineffective Assistance
Criminal 	defendants 	have 	a 	right 	to 	effective 	legal
assistance 	under 	the 	Sixth 	Amendment 	to 	the 	United 	States
Constitution. 	See 	Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687
(1984). 	To establish that counsel’s assistance was not reasonably
effective, 	a 	petitioner 	must 	satisfy 	a 	two-pronged 	analysis.
First, 	he 	must 	show 	that 	counsel’s 	performance 	fell 	below 	an
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
7
objective 	standard 	of 	reasonableness. 	Id. 	at 	669. 	Second, 	he
must 	show 	that 	he 	was 	prejudiced 	by 	counsel’s 	alleged 	deficient
performance. 	Id.
When 	considering 	the 	performance 	prong, 	courts 	apply 	a
“strong 	presumption 	that 	counsel’s 	conduct 	falls 	within 	the 	wide
range 	of 	reasonable 	professional 	assistance[.]” 	Id. 	at 	689.
Whether 	representation 	fell 	below 	an 	objective 	standard 	of
reasonableness 	is 	measured 	by 	“prevailing 	professional 	norms.”
Lewis 	v. 	Wheeler, 	609 	F.3d 	291, 	301 	(4th 	Cir. 	2010) 	(quoting
Strickland, 	466 	U.S. 	at 	688). 	The 	court 	must 	judge 	counsel 	“on
the facts of the particular case” and assess counsel’s performance
“from counsel’s perspective at the time.” 	Strickland, 466 U.S. at
689–90. 	“Judicial scrutiny of counsel’s performance must be highly
deferential[.]” 	Id. at 689. 	A court must consider “the practical
limitations 	and 	tactical 	decisions 	that 	trial 	counsel 	faced.”
Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
To 	satisfy 	the 	prejudice 	prong, 	a 	petitioner 	must 	show 	that
there 	is 	a 	“reasonable 	probability 	that, 	but 	for 	counsel’s
unprofessional 	errors, 	the 	result 	of 	the 	proceeding 	would 	have
been 	different.” 	Strickland, 	466 	U.S. 	at 	694. 	“A 	reasonable
probability is a probability sufficient to undermine confidence in
the outcome.” 	Id. 	If it is clear that a petitioner has failed to
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
8
satisfy 	either 	prong 	under 	Strickland, 	a 	court 	need 	not 	inquire
into whether he satisfied the other.
Here, the Court concludes that Owens’s counsel’s performance
did 	not 	fall 	below 	an 	objective 	standard 	of 	reasonableness 	by
failing 	to 	discover 	evidence 	of 	Owens’s 	psychological 	and
neurological 	conditions. 	As 	Owens 	points 	out, 	his 	psychological
and neurological deficits were unknown prior to the filing of the
Petition, and Owens admits that they “could not have been presented
at the time of trial or sentencing.” 	ECF No. 61 at 7, 14. 	Owens’s
Presentence 	Investigation 	Report, 	which 	the 	parties 	had 	an
opportunity to review and which was adopted by the Court, indicates
that 	Owens 	had 	no 	reported 	history 	of 	mental 	or 	emotional 	issues
or history of treatment. 	See PSR, ECF No. 40, at ¶ 89. 	There is
not 	a 	sufficient 	record 	before 	the 	Court 	to 	show 	that 	reasonable
counsel should have been on notice that Owens might have mental or
neurological issues that were relevant to his plea or sentencing.
Further, the Court agrees with the Magistrate Judge that even
if Owens could show that counsel was on notice of his psychological
and 	neurological 	issues, 	the 	Petition 	should 	still 	be 	dismissed.
The 	unknown 	nature 	of 	Owens’s 	diagnoses 	is 	the 	reason 	why 	his
Petition fails and also the only reason why his Petition could be
considered 	timely. 	Owens 	is 	aware 	that 	the 	Petition 	was 	filed
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
9
over one year after his conviction became final, and he is relying
upon 	his 	diagnoses 	as 	recently-discovered 	evidence 	in 	order 	to
pursue 	relief 	under 	28 	U.S.C. 	§ 	2255(f)(4). 	Thus, 	Owens’s 	claim
is 	self-defeating: 	if 	he 	could 	show 	that 	counsel 	could 	have
discovered 	these 	issues 	prior 	to 	sentencing, 	then 	“the 	facts
supporting the claim or claims presented could have been discovered
through the exercise of due diligence” before sentencing, and his
Petition would be untimely. 	For all of these reasons, the Petition
must be denied and dismissed.
IV. 	CONCLUSION
For the reasons discussed, the Court ORDERS as follows:
• 	The R&R is ADOPTED [ECF No. 62 in 1:16-CR-61;
ECF No. 5 in 1:25-CV-70];
• 	The 	motion 	to 	appoint 	counsel 	is 	DENIED 	[ECF
No. 56 in 1:16-CR-61];
• 	The 	motion 	to 	exceed 	page 	limitations 	is
GRANTED 	[ECF 	No. 	67 	in 	1:16-CR-61; 	ECF 	No. 	8
in 1:25-CV-70];
• 	Owens’s 	objections 	are 	OVERRULED 	[ECF 	No. 	68
in 1:16-CR-61; ECF No. 9 in 1:25-CV-70];
• 	The 	Petition 	is 	DENIED 	and 	DISMISSED 	with
prejudice 	[ECF 	No. 	52 	in 	1:16-CR-61; 	ECF 	No.
1 in 1:25-CV-70];
• 	Case 	No. 	1:25-CV-70 	is 	DISMISSED 	WITH
PREJUDICE and STRICKEN from the Court’s active
docket; and
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RUSSELL CARY OWENS 	1:16-CR-61, 1:25-CV-70
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION, OVERRULING OBJECTIONS, AND
DENYING AND DISMISSING PETITION UNDER 28 U.S.C. § 2255
10
• 	The 	Clerk 	SHALL 	enter 	a 	separate 	judgment
order 	in 	favor 	of 	the 	United 	States 	in 	1:25-
CV-70.
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	§ 	2255
Proceedings, 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 	a 	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.” 	Id. 	The
Court 	finds 	it 	inappropriate 	to 	issue 	a 	certificate 	of
appealability 	in 	this 	matter 	because 	Owens 	has 	not 	made 	a
“substantial 	showing 	of 	the 	denial 	of 	a 	constitutional 	right.”
See 28 U.S.C. § 2253(c)(2). 	The Court, therefore, DENIES issuing
a certificate of appealability.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Memorandum
Opinion 	and 	Order 	to 	counsel 	of 	record 	by 	email 	and 	to 	Owens 	by
certified mail, return receipt requested.
DATED: July 7, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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