United States District Court, E.D. Michigan, Northern Division
PATRICIA T. MORRIS MAGISTRATE JUDGE
AMENDED ORDER OVERRULING OBJECTIONS, ADOPTING REPORT
AND RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE,
DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
September 14, 2017, the Court entered an Order denying
Petitioner's Motion to Vacate. ECF No. 80. The Order did
not address whether a certificate of appealability would be
issued, nor did it address whether Petitioner would be
granted leave to proceed in forma pauperis. This
amended order addresses those issues and also reincorporates
the text of Court's September 14 order.
September 26, 2014, Petitioner Deondrai Tippins
(“Petitioner” or “Tippins”) was found
guilty on four of the five counts charged in the third
superseding indictment, i.e., distribution of cocaine (Counts
1, 3), knowingly carrying a firearm during and in relation to
a drug trafficking crime, i.e., during the commission of
Count 3 (Count 4), and of felon in possession of a firearm
(Count 5). ECF No. 45. He was found not guilty of knowingly
carrying a firearm during and in relation to a drug
trafficking crime, i.e., during the commission of Count 1
(Count 2). Id. An amended judgment filed on April 7,
2015, sentenced Petitioner to 187 months on Counts 1, 3, and
5 concurrent, and 60 months on Count 4 to be served
consecutively to the sentence on Counts 1, 3, and 5. ECF No.
59 at 687. On appeal, Petitioner raised two issues: (1)
whether the district court erred in refusing to dismiss the
third superseding indictment for vindictive prosecution and
(2) whether the district court erred in applying the
enhancement for maintaining a premises for drug distribution
under the sentencing guidelines. ECF No. 63. The Sixth
Circuit affirmed the district court. On March 14, 2017,
Petitioner filed the instant motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. ECF No. 72.
August 1, 2017, Magistrate Judge Patricia T. Morris issued a
Report and Recommendation recommending that this Court deny
Petitioner's Motion to Vacate. ECF No. 78. Petitioner
served his objections on August 14, 2017. ECF No. 79. Because
Petitioner simply restates the arguments contained in his
Motion to Vacate, his objections do not trigger de novo
review under the Magistrate's Act. The objections 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.”
objections do not specifically mention or challenge any
aspect of Judge Morris's opinion. Rather, petitioner
asserts the same two grounds for relief in his objections to
the report and recommendation as he did in his motion to
vacate: (1) ineffective assistance of trial counsel for
failing to acknowledge and argue precedent of this Circuit
regarding 18 U.S.C. §924(c); and (2) ineffective
assistance of trial counsel for failing to object to the
playing of his recorded conversation which he believes
omitted the second half of his statement.
appeared to argue in his Motion to Vacate that the indictment
and/or the jury verdict form confused and conflated
“use”, “carrying”, and
“possession” under 18 U.S.C. § 924(c). Mot.
to Vacate at 32-33, ECF No. 72. Petitioner's first
objection to Judge Morris's report and recommendation
begins as follows: “[o]nce again, Petitioner contends
that his attorney failed to explain the government's
burden to prove that [he] “used” or
“carried” a firearm during and in relation to a
drug trafficking offense.” Obj. at 1, ECF No. 79.
Petitioner's argument takes a slightly different form in
his objections, focusing on his counsel's alleged failure
to articulate the burden of proof. Id. Nevertheless,
the argument is essentially the same, and was rejected by
To the extent that Petitioner claims there may have been
confusion on the part of the jury, I suggest there could be
none since the third superseding indictment was consistent
with the jury verdict form in charging carrying a firearm
during and in relation to a drug trafficking crime.
Therefore, neither the indictment nor the jury verdict form
combined or confused the statutory provisions or the
particulars of the charge.
Rep. & Rec. at 5, ECF No. 78. Petitioner does not
specifically identify an error in Judge Morris's report,
and simply restates the same argument raised in his Motion to
Vacate. Accordingly, the objection will be overruled.
Motion to Vacate also asserted that his counsel erred by
failing to object to the playing of a recorded phone call he
made from the jail, which he believes omitted his statement
that he merely “got caught getting high.” Rep.
& Rec. at 6, ECF No. 78. Judge Morris rejected this
argument, explaining that “a review of the record
reveals that the recording played at trial did not exclude
that statement.” Id. (citing ECF No. 57 at
540-43). Petitioner's second objection reads as follows:
“[p]etitioner states and says again if the courts'
play the whole recorded tape, the court would find out that
the government only allowed what they wanted the jury to ...