United States District Court, E.D. Michigan, Northern Division
ANGELO ADAM GONZALEZ, Petitioner.
UNITED STATES OF AMERICA, Respondent,
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTIONS TO VACATE SENTENCE, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO
PROCEED IN FORMA PAUPERIS
L. LUDINGTON United States District Judge
April 23, 2015, Petitioner Angelo Adam Gonzalez was sentenced
to 140 months of imprisonment after pleading guilty to one
count of conspiracy to possess and distribute cocaine. ECF
No. 128. Gonzalez did not appeal. On March 15, 2016, Gonzalez
filed a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 1134. That motion was referred to
Magistrate Judge Patricia T. Morris. ECF No. 137. On January
20, 2017, Judge Morris issued a report recommending that
Gonzalez's motion to vacate be denied. ECF No. 150.
Several weeks later, Gonzalez filed objections to Judge
Morris's report and recommendation. ECF No. 153. He has
also filed a supplemental motion to vacate. ECF No. 154. For
the reasons stated below, Gonzalez's objections will be
overruled, Judge Morris's report and recommendation will
be adopted, and both motions to vacate will be denied.
was arrested after officers stopped the car he and one of his
coconspirators were traveling in. As the vehicle came to a
stop, Gonzalez's coconspirator ran from the vehicle and
attempted to dispose of two kilograms of cocaine. While in
jail, Gonzalez called the third coconspirator and directed
him to clean up the mess. All three men were indicted
See Nov. 19, 2014, Op. & Ord., ECF No. 92, for
an additional summary of the facts leading to indictment.
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.”
original motion to vacate advances three grounds for relief.
First, Gonzalez argues that his retained counsel rendered
ineffective assistance of counsel by failing to file a motion
to suppress, for failing to contest the testimony that the
officer gave before the grand jury, and for not contesting
the quantity or amount of drugs used to calculate
Gonzalez's guideline range at sentencing. Judge Morris
rejected all three grounds because Gonzalez pleaded guilty
and does not argue or allege that, but for his counsel's
ineffectiveness, he would have proceeded to trial.
has filed four objections. First, he contends that he pleaded
guilty because Officer Remer testified before the grand jury
that drugs were found near Gonzalez's location. He faults
his counsel because “petitioner would have insisted on
taking to trial had petitioner been aware of the
inconsistencies and the insufficiency of the evidence for
which this petitioner was pleaing to.” Objs. at 3, ECF
No. 153. Second, Gonzalez argues that his counsel did not
adequately investigate whether the dash camera on the police
car might have exculpated him. Third, Gonzalez argues that
his attorney was ineffective because he did not join in a
co-defendant's motion to suppress. Gonzalez's fourth
objection simply combines his second and third objections.
are entitled to effective assistance of counsel during plea
negotiations. Lafler v. Cooper, 566 U.S. 156, 162
(2012). As in all ineffective assistance of counsel
challenges, the familiar Strickland v. Washington
test applies. Id. (citing 466 U.S. 668). First, the
defendant must show “that the counsel's
representation fell below an objective standard of
reasonableness.” Strickland, 466 at 688.
Second, the defendant must show “that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
defendant has pleaded guilty and later contends that he
received the ineffective assistance of counsel, the defendant
“must show that there is a reasonable probability that,
but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985). The
Hill Court gave examples which are particularly
[W]here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence, the
determination whether the error “prejudiced” the
defendant by causing him to plead guilty rather than go to
trial will depend on the likelihood that discovery of the
evidence would have led counsel to change his recommendation
as to the plea. This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would
have changed the outcome of a trial. Similarly, where the
alleged error of counsel is a failure to advise the defendant
of a potential affirmative defense to the crime ...