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United States v. McCoy

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

January 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL MCCOY, Defendant.

          Patricia T. Morris, Magistrate Judge

          ORDER ADOPTING REPORT AND RECOMMENDATION IN PART, DENYING MOTION TO VACATE IN PART, AND DIRECTING FILING OF AFFIDAVIT

          Honorable Thomas L. Ludington, Judge

         On 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.

         I.

         A.

         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.

         B.

         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).

         II.

         Petitioner raises six objections to the report and recommendation, which will be addressed in turn.

         A.

         Petitioner's 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 novo.

         In 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” ...


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