United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO
PROCEED IN FORMA PAUPERIS
Honorable Thomas L. Ludington Judge
April 22, 2013, Salah Dado was sentenced to 240 months of
incarceration after being convicted at trial of conspiring to
manufacture and distribute 1000 or more marijuana plants or
marijuana and with manufacturing 1000 or more marijuana
plants. ECF No. 412. He appealed. ECF No. 413. On July 10,
2014, the Sixth Circuit affirmed his conviction and sentence.
ECF No. 419. On November 17, 2015, Dado filed a motion to
vacate his sentence under 28 U.S.C. § 2255. ECF No. 443.
The motion was referred to Magistrate Judge Patricia T.
Morris. ECF No. 446. Judge Morris issued a report on April
25, 2017, which recommended that Dado's motion to vacate
be denied. ECF No. 465. After Dado requested and was granted
an extension of time to file objections, ECF Nos. 466, 467,
Dado filed a “letter-motion” objecting to the
report and recommendation. ECF No. 469. Because Dado simply
restates the arguments in his motion to vacate in extremely
conclusory fashion, his “objections” do not
trigger de novo review under the Magistrates Act. They will
be overruled, and the motion to vacate will be denied.
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.”
letter, Dado provides a half-page of objections which simply
restate the arguments in his motion to vacate. He does not
specifically mention, much less challenge, any particular
aspect of Judge Morris's opinion. In his own words,
“Dado stands by his section 2255 and incorporates the
arguments within. If the court agree with the Magistrate
Judges R & R, Dado respectfully requests a certificate of
appealability to determined whether counsel provided
ineffective assistance for failure to advised of the
mandatory minimum enhancement penalty.” Objs. at 1, ECF
No. 469 (sic throughout). This level of generality, which
does not attempt to identify any errors in Judge Morris's
analysis, does not trigger de novo review.
a review of Judge Morris's report and recommendation
reveals that she thoughtfully addressed both of Dado's
arguments in detail. First, Dado argues that his counsel was
ineffective on direct appeal for failing to argue that his
due process rights were violated because the jury did not
expressly find that he had knowledge of the amount and type
of drugs involved. As Judge Morris explains, that argument is
essentially identical to the argument (raised and rejected on
direct appeal), that Alleyne v. United States, 133
S.Ct. 2151 (2013), rendered his conviction unconstitutional.
Second, Dado argues that his conviction must be set aside
because his trial counsel did not communicate the details of
the plea offer and the consequences of rejecting it to him.
But, as Judge Morris explains, Dado's knowledge and
rejection of the plea offer was established on the record at
the final pretrial conference. See FPC Tr. at 4-6,
ECF No. 430. Thus, the factual record renders Dado's
claim untenable. Because Judge Morris properly reviewed and
rejected Dado's claims, his conclusory objections will be
overruled and the motion to vacate will be denied.
objections, Dado requests a certificate of appealability,
which is required to appeal this Court's dispositive
decision. See 28 U.S.C. § 2253(c)(1)(a); Fed.
R. App. P. 22(b). A certificate of appealability may be
issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a court rejects a habeas claim
on the merits, the substantial showing threshold is met if
the petitioner demonstrates that reasonable jurists would
find the district court's assessment of the
constitutional claim debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). “A
petitioner satisfies this standard by demonstrating that . .
. jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In
applying that standard, a district court may not conduct a
full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of the
petitioner's claims. Id. at 336-37. “The
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
Court concludes that Petitioner has failed to make a
substantial showing of the denial of a constitutional right.
Accordingly, a certificate of appealability is not warranted
in this case. The Court further concludes that Petitioner
should not be granted leave to proceed in forma
pauperis on appeal, as any appeal would be frivolous.
See Fed. R. App. P. 24(a).
it is ORDERED that Petitioner Dado's objections to the
report and recommendation, ECF No. 469, are OVERRULED.
further ORDERED that the Magistrate Judge's report and
recommendation, ECF No. 465, is ADOPTED.
further ORDERED that Petitioner Dado's motion to vacate
her sentence under 28 U.S.C. ...