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United States v. Sheppard

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

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
PATRICK RAY SHEPPARD, Defendant.

         ORDER 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 APPEAL

          THOMAS L. LUDINGTON United States District Judge.

         On May 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.

         On 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.

         On 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.

         I.

         The 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)).

         Petitioner 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.

         A.

         Sheppard's 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.

         Sheppard's 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 latest of

(1) the date on which the judgment of conviction becomes final;
(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 governmental action;
(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 ...

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