United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris Magistrate Judge.
ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
MOTION TO VACATE, GRATING MOTION TO DISMISS, DENYING
CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO APPEAL IN
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
18, 2014, after six days of trial, Petitioner Anderson pled
guilty to conspiracy to possess with intent to distribute and
to distribute cocaine base, cocaine, and heroin in violation
of 21 U.S.C. § 846 and 841(a)(1), three individual
counts of possession with intent to distribute cocaine and
heroin in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(A), and use of a communication facility in
facilitation of the commission of a felony under the
controlled substance act in violation of 21 U.S.C. §
843(b). ECF No. 92. In exchange for his plea, Petitioner
received a three level reduction for acceptance of
rule 11 plea agreement contained a waiver of Petitioner's
right to appeal his conviction or sentence and a waiver of
his right to collaterally attack his conviction or sentence
under 28 U.S.C. 2255. Id. On June 9, 2015,
Petitioner was sentenced to concurrent prison terms of 292
months (counts I and II), 240 months (counts V and VI), and
48 months (count VIII). ECF No. 151. Petitioner moved to
withdraw his guilty plea, which was denied. ECF Nos. 127,
147. Petitioner appealed on June 16, 2015. ECF No. 149. The
Government's motion to dismiss the appeal based on the
waiver was granted, and the Sixth Circuit concluded that the
plea was entered into knowingly and voluntarily. ECF No. 173.
Petitioner filed the instant motion to vacate under 28 U.S.C.
§ 2255 on September 27, 2016. ECF No. 185. The
government filed a motion to dismiss on October 11, 2016. ECF
No. 190. The matter was referred to Magistrate Judge Patricia
T. Morris, who issued a report recommending that motion to
vacate be denied, and that the motion to dismiss be granted.
ECF No. 197. Petitioner filed objections to the report and
recommendation. ECF No. 200.
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.”
raises one objection: that Judge Morris did not address the
impact of his claim for ineffective assistance of counsel on
the validity of his waiver of appellate and collateral
remedies. Rather, he contends Judge Morris relied on the
express finding by the Sixth Circuit that the waiver was
enforceable and the plea agreement was entered into knowingly
and voluntarily. Judge Morris found that “the same
analysis applies to his collateral attack waiver and compels
that the waiver be enforced.” “A waiver of appeal
rights may be challenged on the grounds . . . of ineffective
assistance of counsel.” United States v. Toth,
668 F.3d 374, 377 (6th Cir. 2012) (quoting In re
Acosta, 480 F.3d 421, 422-23 (6th Cir. 2007)). A claim
of ineffective assistance of counsel “goes to the
validity of [the] waiver.” Acosta, 480 F.3d at
422. Thus, it would be “entirely circular for the
government to argue that defendant has waived his right to
appeal or collateral attack when the substance of the claim
challenges the very validity of the waiver itself.”
for ineffective assistance of counsel requires the petitioner
to show that his counsel's representation fell below an
objective standard of reasonableness, and that there is a
reasonable probability that but for his counsel's errors,
the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S.
668 (1984). This two prong test applies to guilty plea
challenges based on ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52 (1985). To satisfy the
prejudice prong of Strickland when challenging the
validity of a guilty plea, a petitioner must show that, but
for his counsel's errors, he would have not pled guilty
and insisted on going to trial. Id.
motion to vacate, Petitioner asserts the following errors
giving rise to his claim of ineffective assistance of
counsel: the prosecution recorded privileged jail-house phone
calls between Petitioner and his attorney; his counsel failed
to seek exclusion of illegally obtained evidence; his counsel
failed to show him discovery regarding letters which
proclaimed his innocence; his counsel misrepresented his
guideline range and promised him a ten-year sentence.
does not explain how an intrusion on confidential
communications deprived him of effective assistance of
counsel or ...