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United States v. Burlingame

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

July 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Respondent,
v.
FRED ANDREW BURLINGAME, Defendant - Petitioner.

         ORDER 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 FORMA PAUPERIS

          THOMAS L. LUDINGTON United States District Judge.

         On 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.

         On June 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 unconstitutionally vague).

         On May 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.

         I.

         Pursuant 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).

         Burlingame 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.

         A.

         Through 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.

         B.

         Another 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 (1985)).

         His § 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 ...


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