United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S
NOVEMBER 3, 2016 REPORT AND RECOMMENDATION 
G. Edmunds United States District Judge
Robert Woods pled guilty to three counts of receiving child
pornography in violation of 18 U.S.C. § 2252(A)(3) and
one count of possession of child pornography in violation of
18 U.S.C. § 2252(a)(5)(B). He was sentenced to 90 months
of incarceration. Approximately one year after withdrawing
his direct appeal, Woods filed the instant motion for relief
from judgment under 28 U.S.C. § 2255. On November 3,
2016, the Magistrate Judge issued a report recommending that
Woods' motion be denied. (Dkt. 55). Three days later,
Woods filed two objections to the Report and Recommendation,
which the Court considers here. For the reasons stated more
thoroughly below, the Court ADOPTS the Report and
Recommendation, DENIES Woods' objections, and DECLINES to
issue a certificate of appealability.
Court performs a de novo review of those portions of
the Magistrate Judge's Report and Recommendation to which
Plaintiff has objected. 28 U.S.C. § 636(b). The Court
need not and does not perform a de novo review of
the report's unobjected-to findings. Thomas v.
Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985). Moreover, an objection that "does nothing more
than state a disagreement with a magistrate's suggested
resolution, or simply summarizes what has been presented
before, is not an 'objection' as that term is used in
this context.'" Aldrich v. Bock, 327
F.Supp. 2d. 743, 747 (E.D. Mich. 2004). Indeed, the purpose
of an objection to a report and recommendation is to provide
the Court “with the opportunity to consider the
specific contentions of the parties and to correct any errors
immediately.” Id. (quoting United States
v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981).
28 U.S.C. § 2255, "[a] prisoner in custody under
sentence of a [federal] court . . . claiming the right to be
released . . . may move the court which imposed the sentence
to vacate, set aside or correct the sentence." To
prevail on a § 2255 motion, the petitioner must allege:
"(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid." Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003) (internal
prevail on an ineffective assistance claim, Woods must show
that his counsel's performance was both deficient and
prejudicial to his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient
performance requires a showing that "counsel made errors
so serious that counsel was not functioning as the
'counsel' guaranteed by the Sixth Amendment."
Id. In other words, Woods must show that his
counsel's representation "fell below an objective
standard of reasonableness." Id. at 688.
"This standard is highly deferential, and there is a
'strong presumption that counsel's conduct falls
within the wide range of reasonable professional
assistance.' " Mallett, 334 F.3d at 497
(quoting id. at 689).
Objection 1: Failure to Challenge the Mandatory Minimum
first objection hardly merits discussion. In essence, he
argues that the Magistrate Judge erred by failing to give due
deference to a district court decision holding that the
statutory mandatory minimum under 18 U.S.C. § 2252(b)(1)
is unconstitutional. See United States v. C.R., 792
F.Supp.2d 343, 347 (E.D.N.Y. 2011) (vacated and remanded).
However, as Woods readily acknowledges, "Judge
Weinstein's viewpoint on [this issue] has been repudiated
by later opinions . . . ." (Objection at 3). Indeed,
C.R. was overturned by the Second Circuit and has no
precedential value in this Court or any other. See United
States v. Reingold, 731 F.3d 204, 206, 230 (2d Cir.
2013) ("The application of the five-year minimum
sentence mandated by 18 U.S.C. § 2252(b)(1) is not so
grossly disproportionate to the crime of distributing child
pornography as to be precluded in this case by the Cruel and
Unusual Punishment Clause of the Eighth Amendment.").
More to the point, as the Magistrate Judge aptly explained,
"there is no case in the country that has been upheld on
appeal, which has ruled that the statutory mandatory minimum
for child pornography offenses constitutes cruel and unusual
punishment." (Report and Recommendation at 11). On the
contrary, there are numerous circuit court decisions
rejecting Eighth Amendment challenges in this context.
See Id. Woods fails to offer any response to the
great weight of authority on this issue, and there is simply
no utility in discussing it further. For that reason, the
Court must, and does, DENY Woods' first objection.
Objection 2: Mitigation Report
alterative, Woods argues that "the matter should be
remanded for a new Report and Recommendation" because
the Magistrate Judge failed to properly evaluate a mitigation
report detailing his personal history and characteristics.
(Objection at 5-6). This is nonsensical for a number of
reasons. First, as the Magistrate Judge accurately pointed
out, Woods "did not attach the 'mitigation
report' to the instant Motion . . . so the report and
Petitioner's arguments related thereto are not before the
court." (Report and Recommendation at 7). In other
words, Woods appears to be casting blame on the Magistrate
Judge for his own shortcoming- i.e. failing to attach the
report to his motion. Nevertheless, the bulk of the pertinent
details were alluded to in Woods' motion (Dkt.
Petitioner's Mot. 8-11), and the Magistrate Judge was
clear that "even if Petitioner had attached the report
to the instant Motion, his arguments regarding counsel's
efforts to prepare for sentencing and to mitigate the
sentence would still fail, . . . ." Id. In this
way, remanding the matter would be futile.
the Court has independently reviewed the contents of the
mitigation report and agrees that it would not, and does not,
support the application of a sentencing variance. See
Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586,
597, 169 L.Ed.2d 445 (2007) ("If [the Court] decides
that an outside-Guidelines sentence is warranted, [it] must
consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the
degree of the variance."). Indeed, Woods' trial
counsel "presented a slew of mitigating evidence . . .
through the Sentencing Memorandum and through his comments at
the sentencing hearing" (Report and Recommendation at
10), and nothing in the report changes the Court's view
of the pertinent sentencing factors under 18 U.S.C. §
those reasons, the Court is satisfied that Woods' Sixth
Amendment right to counsel was adequately protected, and his
petition for post-conviction relief is thus DENIED.