By Wendy Holdren
Former Upper Big Branch mine superintendent Gary May has filed another intent to appeal after the court dismissed a motion to correct his sentence in February.
May, who is serving a 21-month sentence for conspiracy in the April 2010 explosion, filed a motion to vacate, set aside or correct his sentence on Sept. 11, 2013, claiming that his defense counsel, Tim Carrico, had a conflict of interest.
U.S. Magistrate Judge R. Clarke VanDervort filed a recommendation in October 2013 that May’s motion be denied, as he said his claims were “without merit.”
May claimed that Carrico was retained by Massey Energy and Massey’s criminal liability could have been impacted by his testimony.
He said he believes that Carrico, Alpha’s corporate counsel Phil Monroe and former Massey owner Don Blankenship’s long-time attorney Tammy Harvey conspired to make him a “villain” and a “scapegoat.”
“It is not evident that Mr. Carrico had an actual conflict of interest and actively represented conflicting interests,” VanDervort said.
May filed an objection to VanDervort’s recommendation Nov. 4, stating there were inaccuracies in the judge’s findings.
Regardless, U.S. District Judge Irene C. Berger ordered Feb. 3, 2014 that VanDervort’s findings and recommendations be adopted and May’s motion was dismissed.
May filed an intent to appeal that decision Feb. 18, but the actual appeal has not yet been filed.
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