United States District Court, E.D. Michigan, Northern Division
ORDER SUSTAINING OBJECTIONS IN PART AND OVERRULING
OBJECTIONS IN PART, ADOPTING THE REPORT AND RECOMMENDATION IN
PART, DENYING THE MOTION TO VACATE, AND DENYING CERTIFICATE
L. LUDINGTON United States District Judge
Richardson was sentenced to 262 months after being convicted
of possession of nine grams of cocaine base with intent to
distribute and being a felon in possession of a firearm. ECF
No. 56. Petitioner was sentenced as a career offender. On
appeal, the Sixth Circuit overturned Petitioner's cocaine
conviction. ECF No. 63. A public defender was appointed to
represent Petitioner. ECF No. 69. Pursuant to a plea
agreement, Petitioner pleaded guilty on October 13, 2015. ECF
No. 77, 79. He was sentenced on December 17, 2015, to 151
months of incarceration on the cocaine count and 120 months
of incarceration of the firearm count, to be served
concurrently. ECF No. 86. Judgment was entered on December
January 4, 2017, Petitioner, through the attorney appointed
to represent him after his conviction was overturned, filed a
motion to vacate his sentence pursuant to 28 U.S.C. §
2255. ECF No. 88. Petitioner concurrently filed a motion for
appointment of counsel. ECF No. 88. On January 10, 2017, the
Court issued an order granting the motion for appointment of
counsel, directing the Government to respond to the motion to
vacate, and referring the motion to Magistrate Judge Patricia
T. Morris. ECF No. 91.
14, 2017, Judge Morris issued a report recommending that the
motion to vacate be denied as untimely and because Richardson
was properly sentenced as a career offender. ECF No. 97.
Richardson has filed objections to the report and
recommendation. ECF No. 98. For the reasons that follow,
Richardson's objections will be overruled in part and
sustained in part, the report and recommendation will be
adopted in part, and Richardson's motion to vacate will
motion to vacate, Richardson challenges his classification at
sentencing as a career offender. Richardson received that
enhancement because of two prior state court convictions: a
March 1997 conviction for possession with intent to deliver
marijuana and a February 1998 conviction for delivery of
cocaine. Relying upon a series of recent Supreme Court cases,
Richardson argues that the state crimes of which he was
convicted involved elements that are broader than the
corresponding federal guidelines offenses. For that reason,
Richardson argues that his prior state court convictions for
possession with intent to deliver and delivery of controlled
substances cannot serve as predicate offenses for career
report and recommendation, Judge Morris recommended denial of
the motion to vacate for two reasons. First, Judge Morris
suggested that Richardson's motion to vacate was
untimely. Second, Judge Morris found that, even if the merits
of Richardson's challenge to the career offender
enhancement applied to his sentence were reached, Richardson
was properly sentenced as a career offender. Richardson
objects to both those findings.
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.”
Richardson argues that Judge Morris erred by finding that his
motion to vacate was untimely. Judgment on Richardson's
sentence was originally issued on December 30, 2015. ECF No.
86. He did not appeal. The motion to vacate was filed on
January 4, 2017, less than one year and one week later. ECF
motion seeking relief under § 2255 is untimely if it is
not filed within a “1-year period of limitation. 28
U.S.C. § 2255(f). “That ...