United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, AND DENYING GOVERNMENT'S MOTION TO
L. LUDINGTON United States District Judge
April 1, 2016, Defendant Roy C. Bradley filed his present
petition for habeas relief pursuant to 28 U.S.C. §2255
based on claims that his trial counsel was ineffective.
See ECF No. 138. The Government moved to dismiss the
petition on April 27, 2016, arguing in part that Bradley
could not satisfy § 2255's “in custody”
requirement. See ECF No. 142. On August 9, 2016
Magistrate Judge Patricia T. Morris issued a report and
recommendation concluding that the Government's motion to
dismiss should be denied. See ECF No. 148. The
Government timely objected. See ECF No. 149. For the
reasons stated below, the Government's objections will be
overruled, the report and recommendation will be adopted, and
the Government's motion to dismiss will be denied.
August 29, 2013 the grand jury issued an indictment charging
Defendant Roy C. Bradley with four violations of the Clean
Air Act, 42 U.S.C. § 7412(h) arising out of the improper
remediation and disposal of asbestos. Specifically, the
indictment alleged that Defendant Bradley and two
co-Defendants failed to properly handle, remove, and dispose
of asbestos-containing material during the renovation of an
old church building for an entity called Madison Arts, LLC.
The building is now used by the Bay City Academy.
December 2, 2014, after a seven day jury trial, Bradley was
convicted of all four counts. See Verdict, ECF No.
98. At trial, Bradley was represented by appointed counsel,
Mr. Elias Escobedo. Mr. Escobedo was Bradley's second
attorney in this case; Mr. Andrew Concannon had previously
been granted permission to withdraw as Bradley's counsel
after representing him for about nine months. Following
Bradley's conviction, Attorney Escobeda filed a motion to
withdraw as Bradley's attorney and have Attorney Mark A.
Satawa substituted in his place. See ECF No. 111.
This motion was eventually granted. See ECF No. 116.
Attorney Satawa then filed a motion for reconsideration of a
Court order striking a previously filed motion for a new
trial, which was denied on January 14, 2016. Id.
March 12, 2015 Bradley was sentenced to 60 months of
imprisonment to run concurrently. Judgment was entered on
March 18, 2015. See ECF No. 124. A first amended
judgment was entered on June 24, 2015 in order to modify
Bradley's restitution requirement, and a second amended
judgment entered on June 29, 2015 to correct two clerical
errors. See ECF Nos. 134, 136.
did not immediately begin serving his sentence. Instead, he
was to remain on bond until he was sentenced in a related
case, United States v. Ingersoll, Case No. 14-20216
(April 23, 2014). In Ingersoll, Defendant Bradley,
Steven J. Ingersoll - the owner of Madison Arts - and various
other defendants were charged with conspiracy to commit tax
evasion and wire fraud arising in part from the Bay City
Academy renovation project. After a fourteen-day trial that
began on February 10, 2015 and ended on March 10, 2015, a
jury convicted Steven Ingersoll of two counts of tax evasion,
and found Ingersoll and Defendant Bradley guilty of
conspiring to commit tax evasion. The sentencing hearings in
that matter are ongoing, and Defendant Bradley has not yet
remaining on bond, Bradley filed his current petition for
habeas relief pursuant to 28 U.S.C. § 2255 on April 1,
2016. See ECF No. 138. Bradley argues that his
sentence should be vacated due to the ineffective assistance
of his trial counsel. The Government moved to dismiss the
petition on April 27, 2016, arguing that Bradley had not
complied with the relevant page limits, that he could not
satisfy the “in custody” requirement of §
2255, and that he had not properly exhausted his claims on
appeal. See Mot. Dismiss, ECF No. 142. On August 9,
2016 Magistrate Judge Patricia T. Morris issued a report and
recommendation finding that the page limit issue had been
resolved, that Bradley satisfied the “in custody”
requirement, and that there was no exhaustion requirement for
his claim of ineffective assistance of counsel. See
Rep. & Rec., ECF No. 148. The Government timely objected
to the magistrate judge's “in custody”
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo
review requires at least a review of the evidence before the
magistrate judge; the Court may not act solely on the basis
of a magistrate judge's report and recommendation.
See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). After reviewing the evidence, the Court is free
to accept, reject, or modify the findings or recommendations
of the magistrate judge. See Lardie v. Birkett, 221
F.Supp.2d 806, 807 (E.D. Mich. 2002).
relevant part, ...