United States District Court, E.D. Michigan, Northern Division
OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION,
DENYING PETITIONER'S MOTION TO STAY, GRANTING
RESPONDENT'S MOTION TO DISMISS, DISMISSING
PETITIONER'S MOTION TO VACATE PURSUANT TO 28 U.S.C.
§ 2255, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON
L. LUDINGTON United States District Judge.
16, 2012, an indictment was issued charging Petitioner
Patrick Ray Sheppard with five criminal counts related to two
bank robberies that Sheppard and two co-defendants committed
in March of 2012. See ECF No. 28. According to the
indictment, Sheppard brandished a handgun to intimidate bank
employees and patrons during the course of one of the
robberies. Id. As a result Sheppard was charged with
the one count of conspiracy to commit bank robbery in
violation of 18 U.S.C. § 371, two counts of aiding and
abetting armed bank robber in violation of 18 U.S.C. §
2113(a) & (d) and 18 U.S.C. § 2, and two counts of
using and carrying a firearm in relation to a crime of
violence in violation of 18 U.S.C. § 924(c) and 18
U.S.C. § 2. Id.
September 19, 2012 Sheppard pled guilty to the conspiracy
charge and one count of using and carrying a firearm in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c) and 18 U.S.C. § 2, or Counts 1 and 3 of
the indictment. On December 20, 2012 Sheppard was sentenced
to 60 months' imprisonment on Count 1 and seven years on
Count 3, to run consecutively. Judgment was entered on
January 8, 2013. See ECF No. 75.
August 25, 2016 Sheppard filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. See ECF
No. 126. After the Government moved to dismiss Sheppard's
motion to vacate, Sheppard moved to stay the proceeding.
See ECF Nos. 132, 135. All of the motions were
referred to Magistrate Patricia T. Morris, who issued a
report and recommendation on November 17, 2016. See
ECF No. 137. In her report the magistrate judge recommends
denying Sheppard's motion to stay, granting the
Government's motion to dismiss, and dismissing
Sheppard's motion to vacate. Id. Sheppard filed
objections on December 7, 2016.
decision and order of a non-dispositive motion by a
magistrate judge will be upheld unless it is clearly
erroneous or contrary to law. See 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); Massey v. City of
Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). A district
judge shall consider such objections and may modify or set
aside any portion of the magistrate judge's order found
to be clearly erroneous or contrary to law. Fed.R.Civ.P.
72(a). “The ‘clearly erroneous' standard
applies only to the magistrate judge's factual findings;
legal conclusions are reviewed under the plenary
‘contrary to law' standard . . . . Therefore, [the
reviewing court] must exercise independent judgment with
respect to the magistrate judge's conclusions of
law.” Haworth, Inc. v. Herman Miller, Inc.,
162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992)).
“An order is contrary to law when it fails to apply or
misapplies relevant statutes, case law, or rules of
procedure.” Ford Motor Co. v. United States,
2009 WL 2922875, at *1 (E.D. Mich. Sept. 9, 2009)).
Sheppard raises three objections to the magistrate
judge's report and recommendation: first, he argues that
the magistrate judge erred in recommending that his motion to
stay be denied; second, he argues that the magistrate judge
erred in finding his claims untimely under § 2255(f)(1);
third, he argues he has demonstrated prejudice resulting from
ineffective assistance of counsel in satisfaction of the
requirements of Strickland v. Washington, 466 U.S.
668, 687 (1984). Sheppard's objections are without merit,
and will be overruled.
objections will first be addressed as they relate to his
first and third claims for relief. The magistrate judge did
not directly address these claims, but found generally that
Sheppard's petition was untimely. In his first and third
claims for relief, Sheppard argued that his trial counsel was
ineffective for failing to challenge his criminal history,
resulting in a procedurally and substantively unreasonable
sentence. Specifically, Sheppard argued that his sentence was
impermissibly based in part upon the violation of a local
ordinance. See Am. Plea Agreement p. 15, ECF No. 63.
Sheppard's criminal history score of five was based upon
three offenses resulting in one criminal history point each
pursuant to U.S.S.G. § 4A1.1(c), and two additional
points for committing the charged offense while under prior
sentence pursuant to U.S.S.G. § 4A1.1(d). His five
criminal history points resulted in a criminal history
category of III.
objection to the magistrate judge's finding that his
first and third claims are untimely is without merit. A
motion seeking relief under § 2255 is untimely if it is
not filed within a 1-year period of limitation. 28 U.S.C.
§ 2255(f). That limitation period shall run from the
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively