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Richardson v. United States

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

November 17, 2017

SAMUEL CHARLES RICHARDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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 OF APPEALABILITY

          THOMAS L. LUDINGTON United States District Judge

         Petitioner 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 30, 2015.

         On 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.

         On June 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 be denied.

         I.

         In his 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 offender status.

         In her 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.

         II.

         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).

         Only 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.” Id.

         III.

         A.

         First, 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 No. 88.

         A 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 ...


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