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Anderson v. United States

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

December 27, 2017

PAUL ALLEN ANDERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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 FORMA PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On June 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 responsibility. Id.

         The 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.

         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).

         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.

         II.

         Petitioner raises one objection[1]: 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.” Id.

         A claim 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.

         III.

         In his 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.

         A.

         Petitioner does not explain how an intrusion on confidential communications deprived him of effective assistance of counsel or ...


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