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United States v. Bradley

United States District Court, E.D. Michigan, Northern Division

October 5, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
D-1 - ROY C. BRADLEY, SR., Defendant. v

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, AND DENYING GOVERNMENT'S MOTION TO DISMISS

          THOMAS L. LUDINGTON United States District Judge

         On 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.

         I.

         A.

         On 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.

         On 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.

         On 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.

         B.

         Bradley 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 been sentenced.

         While 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” determination.

         II.

         Pursuant 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).

         A.

         In relevant part, ...


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