United States District Court, E.D. Michigan, Northern Division
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
L. LUDINGTON, United States District Judge.
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.
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
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.
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.
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.
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
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