United States District Court, E.D. Michigan, Northern Division
OVERRULING OBJECTIONS, ADOPTING THE REPORT AND
RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE
SENTENCE, DENYING MOTION TO CONSIDER CASE LAW, DENYING
CERTIFICATE OF APPEALABILTIY, AND DENYING LEAVE TO APPEAL IN
L. LUDINGTON United States District Judge.
January 28, 2015 a one-count indictment was issued charging
Petitioner Fred Andrew Burlingame with being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). A first superseding indictment was issued on
February 11, 2015, followed by a second superseding
indictment on April 8, 2015 that charged Burlingame with one
additional count of manufacturing or attempting to
manufacture methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) and 846, and one
additional count of possessing an unregistered firearm in
violation of 26 U.S.C. § 5861(d). Burlingame pled guilty
to the methamphetamine charge on June 9, 2016. See
ECF No. 20. On September 22, 2015 he was sentenced to 188
months of imprisonment.
24, 2016 Burlingame filed a pro se motion to vacate
his sentence under 28 U.S.C. § 2255. See Mot.
to Vacate, ECF No. 35. Burlingame alleges that the government
failed to hand over all exculpatory evidence, that the
sentencing judge, Judge Ludington, had a conflict of interest
in his criminal case, and that his counsel was ineffective.
He also alleges that he was sentenced under a provision of
the sentencing guidelines rendered unconstitutional by the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015) (striking down the
residual clause of the Armed Career Criminal Act as
25, 2017, Magistrate Judge Patricia T. Morris issued a
report, recommending that Burlingame's motion to vacate
be denied and his motion to consider case law be denied.
See ECF No. 100. The report states that the parties
to this action could object to and seek review of the
recommendation within fourteen days of service. On June 5,
2017, Burlingame filed a motion to extend the time to file
objections to that report. His motion was granted, and he was
given until June 30, 2017 to file objections. See
ECF No. 103. Burlingame did not timely file any objections by
that date, but did file objections a week later. See
ECF No. 104.
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. 2002).
now brings 22 purported objections to the magistrate
judge's report and recommendations. Putting aside the
fact that the objections are untimely, the objections are
without merit. Through the objections Burlingame broadly
raises arguments regarding his possession of pseudoephedrine
hydrochloride tablets (which he admitted to possessing in his
plea agreement and under penalty of perjury at the time of
sentencing), and the Court's purported conflict of
interest. These arguments have already been addressed and
rejected by this Court repeatedly. See ECF No. 95.
The judicial bias argument has also been rejected by the
Sixth Circuit Court of Appeals. See ECF No. 98.
various objections, Burlingame first argues that the
indictment was improperly issued because the Assistant United
States Attorney (AUSA) was not born in the United States. He
therefore argues that he was effectively charged and
convicted by a foreign government. Not only was this argument
not raised in Burlingame's original § 2255,
petition, but it is entirely without merit. During the course
of the proceeding, AUSA Pope was acting in her official
capacity as AUSA for the United States of America, within the
scope of her authority and her official duties.
Burlingame's objections related to her participation will
therefore be rejected.
theme of Burlingame's objections is that his rights were
violated by the Government's failure to hand over
exculpatory evidence within the meaning of Brady v.
Maryland, 373 U.S. 83, 87 (1963). A claim under
Brady requires a showing that material evidence
favorable to the petitioner was suppressed by the
prosecution, either willfully or inadvertently, resulting in
prejudice. Strickler v. Greene, 527 U.S. 263, 281-82
(1999). “[E]vidence is material ‘if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.'” Strickler, 527 U.S. at 280
(quoting United States v. Bagley, 473 U.S. 667, 682
§ 2255 petition does not clearly articulate what if any
specific exculpatory evidence he believes was suppressed by
the state. In his objections, he clarifies that he is
referring to the speculative existence of video tapes showing
that he did not purchase 33 boxes of pseudoephedrine tablets
and that a third party must have stolen his identity. This is
not a plausible claim regarding the existence of exculpatory
evidence. As part of his plea agreement Burlingame
acknowledged that he purchased 33 boxes of pseudoephedrine
hydrochloride, and, at his plea hearing, testified under
penalty of perjury that he had purchased and possessed the
pseudoephedrine hydrochloride with the intent to manufacture
methamphetamine. See Plea ...