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Pego v. United States

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

November 1, 2016

WAYLON JAMES PEGO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON, United States District Judge.

         On February 28, 2013, Defendant-Petitioner Waylon James Pego was sentenced to 360 months of imprisonment after being convicted on 16 counts, including unlawful imprisonment, assault with a dangerous weapon, and aggravated sexual abuse. ECF No. 45. Pego appealed to the Sixth Circuit, and his conviction was affirmed. ECF No. 54. On July 6, 2015, Pego filed a motion to vacate his sentence under 28 U.S.C. § 2255. ECF No. 57. That motion was referred to Magistrate Judge Patricia Morris. ECF No. 62. On February 12, 2016, Judge Morris issued a report recommending that Pego's motion to vacate be denied. ECF No. 70. Pego filed objections to the report and recommendation on February 26, 2016. Pursuant to a de novo review of the record, Pego's objections will be overruled, the report and recommendation will be adopted, and Pego's motion to vacate will be denied.

         I.

         Neither party has objected to the summary of facts contained in the Magistrate Judge's report and recommendation. Accordingly, they will be adopted as if fully restated herein.

         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).

         Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider.” Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). An “objection” that does nothing more than disagree with a magistrate judge's determination, “without explaining the source of the error, ” is not considered a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections, “[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrate's Act.” Id. Petitioner now raises five objections to the magistrate judge's order.

         A.

         First, Pego argues that Judge Morris improperly found that no evidentiary hearing was required in this case. Pego particularly objects to Judge Morris's reliance on Arredondo v. United States for the conclusion that no evidentiary hearing was required. 178 F.3d 778 (6th Cir. 1999). As the Magistrate Judge properly explained, no evidentiary hearing is required under § 2255 if the “petitioner's allegations ‘cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'” Id. at 782 (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir.1995)). Pego quotes the next sentence from Arredondo as supporting the need for an evidentiary hearing: “Where . . . the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial.” Id. Pego argues that because Judge Morris did not conduct the trial, because she made errors of law, and because the grand jury testimony is absent from the record, an evidentiary hearing is required. However, this Court did conduct the trial and concludes, after an independent review of the record, that no evidentiary hearing is necessary. Because the record conclusively shows that Pego is not entitled to relief, no evidentiary hearing is necessary.

         B.

         Pego next objects to Judge Morris's rejection of his argument that his counsel was ineffective for not investigating whether the neighbors of Pego's victims might have witnessed the alleged attacks. In his motion, Pego referenced the grand jury testimony of Rachel Davila, a neighbor of one of Pego's victims. Judge Morris noted that she did “not currently have access to Davila's grand jury testimony due to the ‘long-established policy that maintains the secrecy of the grand jury proceedings in federal courts.'” Rep & Rec. at 8 (quoting Dennis v. United States, 384 U.S. 855, 869 (1966)). However, Judge Morris further stated that “even if Pego's claims regarding Davila's testimony are fully credited, it does not prove that he received ineffective assistance of counsel. Davila's testimony that she did not hear or see Pego's assaults of T.H. provides nothing substantive.” Id. Thus, regardless of whether Ms. Davila's grand jury testimony was already in the record, Ms. Davila's testimony is insufficient to substantiate Pego's argument that he received ineffective assistance of counsel. As Judge Morris noted, “[a]n attorney is not required to raise every colorable argument for his or her assistance to be effective.” Id. (citing Jones v. Barnes, 463 U.S. 745, 753 (1983). And any uncertainty that Ms. Davila might have expressed during her grand jury testimony is far outweighed by the other evidence of Pego's guilt. Accordingly, the decision by Pego's counsel to not raise this argument was not ineffective.

         C.

         Third, Pego objects to Judge Morris's rejection of his argument that Pego's trial counsel should have challenged the jurisdictional propriety of his indictment. Pego is arguing that because the extent of the Saginaw Chippewa Indian Tribe's reservation was established by treaty and thus is nontaxable, his indictment was extra-jurisdictional. Pego's objection to Judge Morris's decision on this point is largely a restatement of the arguments he made in his original motion. Pego attempts to distinguish the cases that Judge Morris cited by arguing that they apply only to Indian reservation lands made alienable by statute, not by treaty. He argues that, because the Isabella Reservation was established by treaty, the land is not taxable. Even if that legal proposition is true, however, this Court would still have jurisdiction over Pego's case. As Judge Morris explained, “even though a patent has issued, making the land alienable and thus taxable by the state or local government, . . . the land within reservation boundaries remains Indian County that this court may properly exercise jurisdiction over crimes committed on such land.” Id. at 9 (citing 18 U.S.C. § 1151). Conversely, if the reservation is not taxable, § 1151 makes clear that the United States Government's jurisdiction still extends to “all land within the limits of any Indian reservation.” The propriety of state taxation of reservation land is a distinct legal issue from federal criminal jurisdiction. Pego has not challenged Judge Morris's ...


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