ASHLAND — A federal prosecutor has filed court pleadings opposing former Carter County Deputy Jailer Keith Hollingsworth’s attempt to have his conviction vacated.

Last month, Hollingsworth’s attorney, Jeffrey C. Mando, filed a motion requesting his client’s 2010 conviction and 44-month sentence for sexually abusing female inmates be set aside because prosecutors failed to disclose evidence favorable to the defendant, as required by law, and this denied him his right to a fair trial.

But, in his response to the motion, Assistant U.S. Attorney Patrick Molloy, who prosecuted Hollingsworth, argues Mando’s motion should be overrruled because the government never had the evidence in question in its “actual or constructive possession” and therefore could not have suppressed it.

Also, Molloy argues, there is no proof the evidence in question — a report by Deputy U.S. Marshal Wade Hepburn referenced in a civil lawsuit deposition — even exists, therefore the defendant “cannot demonstrate that the United States suppressed such evidence.”

In his 16-page motion to vacate, Mando claims that in a deposition for a now-settled civil lawsuit filed by another Carter deputy jailer, Gary Elkins, John Perrine, chief deputy U.S. marshal for the Southern District of West Virginia, “flatly contradicted” his trial testimony the marshals did not independently investigate the allegations of the federal prisoner Hollingsworth was convicted of abusing in 2005.

According to Mando, Perrine — for the first time — testified he sent Hepburn to investigate the inmate’s allegations and Hepburn prepared a report concluding they were unsubstantiated.

Sheila Binion, Hollingsworth’s sister and former deputy jailer matron at the detention center, corroborated that story, testifying in Elkins’ lawsuit Hepburn came to the jail immediately after the inmate made allegations against Hollingsworth, Mando’s motion states. However, when questioned about the report in his own deposition, Hepburn claimed not to recall it or the investigation, Mando wrote.

However, in his rebuttal, Molloy maintains that even viewed in a light most favorable to the defendant, all Hollingsworth can show “is that it is possible that at one point, a Hepburn report existed.

“Nothing Hollingsworth has presented shows ... that the United States ever had or should have had possession of a ‘Hepburn report,’ or even have reason to know it existed,” he wrote.

Molloy also noted that in his own deposition for Elkins’ suit, Hepburn testified he had no copy of any such report and denied ever having made one.

Additionally, according to Molloy, in the same deposition referenced by Mando, Perrine at first did mention he recalled Hepburn conducting a 2005 investigation and making a written report. However, when asked for a copy, he conceded he didn’t have one, was unable to find the report and was unwilling to state for the record he believed such a report even existed.

As for Binion’s testimony, Molloy maintains it goes only to show Hepburn may have investigated the matter in 2005, but does not indicate in any way he ever produced a written report.

Hollingsworth, 45, was convicted Oct. 13, 2010, of sexually abusing a ward in his custody by engaging in sexual acts with a woman who was in the Carter jail as a federal prisoner in 2006, and of violating the constitutional rights of another inmate by touching her in a sexual manner while she was sleeping in her cell in 2007. The charges were the result of an investigation launched by the U.S. Marshal Service and the FBI following the 2006 incident.

Hollingsworth appealed his conviction to the U.S. Sixth Circuit Court of Appeals, which upheld it in April.

Hollingsworth is serving his sentence at the Federal Correctional Institution in Oakdale, La., according to the Bureau of Prisons’ online inmate locator. His projected release date is June 27, 2014.

KENNETH HART can be reached at khart@dailyindependent.com or (606) 326-2654.