United States District Court, E.D. Michigan, Northern Division
Patricia T. Morris, Magistrate Judge
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART,
DENYING MOTION TO VACATE IN PART, AND DIRECTING FILING OF
Honorable Thomas L. Ludington, Judge
March 10, 2016, Petitioner Michael McCoy
(“Petitioner” or “McCoy”) plead
guilty to aiding and abetting the distribution of child
pornography in violation of 18 U.S.C. § 2252A. ECF No.
47. On May 16, 2016, judgment was entered sentencing
Petitioner to 156 months incarceration. ECF No. 52. On April
3, 2017, Petitioner moved to vacate his sentence under 28
U.S.C. § 2255 arguing ineffective assistance of counsel.
ECF No. 55. The motion was referred to Magistrate Judge
Patricia T. Morris. ECF No. 57. The United States filed a
response to the motion to vacate, and Petitioner filed a
reply. ECF Nos. 64, 66. On August 3, 2017, Judge Morris
issued a report recommending that Petitioner's motion to
vacate be denied on all grounds except as to Petitioner's
claim that his counsel refused to file an appeal. Rep &
Rec. at 1. Judge Morris also recommended holding a limited
evidentiary hearing. Id. Petitioner filed timely
objections to the report and recommendation on August 22,
2017. ECF No. 69.
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.”
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).
raises six objections to the report and recommendation, which
will be addressed in turn.
first objection states that Judge Morris “focused
solely on the first portion of my second claim and ignored
where I reported that Ms. Morgan was combative and
argumentative in all four of our encounters.” Obj. at
1, ECF No. 69. The second claim of Petitioner's motion to
vacate reads as follows: “[my attorney] repeatedly
cited my ‘obvious' guilt and was combative,
argumentative, and uninformative in our rare meetings.”
Mot. to Vacate at 5, ECF No. 55. Petitioner is correct that
Judge Morris's report only addressed his assertions that
his counsel thought he was guilty and rarely visited him,
which Judge Morris found did not state a claim for
ineffective assistance of counsel. Rep. & Rec. at 5.
Judge Morris did not address Petitioners' claim that his
counsel was combative, argumentative, and uninformative in
their encounters. Accordingly, that claim will be reviewed de
order to establish a breakdown of the attorney client
relationship giving rise to ineffective assistance of
counsel, a petitioner must do more that offer vague and
conclusory allegations. Milburn v. United States,
2013 WL 1120856, at *15 (E.D. Tenn. Mar. 18, 2013) (citing
Post v. Bradshaw,621 F.3d 406, 419 (6th Cir.2010)).
Rather, a petitioner must offer some “factual details
to flesh out his claim that a breakdown of communication
[lead] to ineffective assistance.” Id. Here,
Petitioner has not done so. Asserting that his counsel was
“combative, argumentative, and uninformative”