United States District Court, E.D. Michigan, Northern Division
ROY C. BRADLEY, SR., Petitioner,
UNITED STATES OF AMERICA, Respondent.
Patricia T. Morris Magistrate Judge.
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION TO VACATE, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
HONORABLE THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.
August 29, 2013, an indictment was returned charging
Defendant Roy C. Bradley (Petitioner) with four counts of
controlling and supervising a demolition and renovation
activity involving 260 linear feet and 160 square feet of
asbestos containing material (ACM) without proper handling,
removal, and disposal of the ACM pursuant to the National
Emissions Standards for Hazardous Air Pollutants under the
Clean Air Act, in violation of 42 U.S.C. §§ 7412(h)
and 7413(c)(1), and 18 U.S.C. §2. ECF No. 3. A jury
trial was held from November 19, 2014 to December 1, 2014,
and Petitioner was convicted on all counts. ECF No. 98. On
January 14, 2015, an order was entered substituting Mark
Satawa as defense counsel in place of trial counsel Elias
Escobedo. ECF No. 116. On the four counts, Petitioner was
sentenced to 60 months incarceration to run concurrently. ECF
No. 124. Petitioner did not appeal his conviction or
sentence. On April 1, 2016, Petitioner filed the instant
motion to vacate sentence under 28 U.S.C. § 2255 based
on ineffective assistance of counsel. ECF No. 138. The motion
was referred to Magistrate Judge Patricia T. Morris. ECF No.
motion to vacate, Petitioner alleged his counsel failed to
investigate the case prior to trial, refused to consider
evidence Petitioner presented to him, failed to subpoena key
witnesses from A-Plus to establish that all asbestos was
abated, failed to adequately cross examine the
government's witnesses, failed to introduce photographs
into evidence, and rested the defense case without calling a
witness or introducing any exhibits. Mot. to Vacate at 2. An
evidentiary hearing was held on June 27, 2017. Judge Morris
filed a report and recommendation on September 25, 2017. ECF
No. 176. Judge Morris found that trial counsel's
performance met the objective standard of reasonableness set
forth in Strickland and recommended denial of
Petitioner's motion to vacate sentence. Strickland v.
Washington, 466 U.S. 668 (1984). Petitioner filed
objections to the report as did the United
States. ECF No. 177, 178.
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).
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.
prevail on a § 2255 motion “‘a petitioner
must demonstrate the existence of an error of constitutional
magnitude which had a substantial and injurious effect or
influence on the guilty plea or the jury's
verdict.'” Humphress v. United States, 398
F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United
States, 330 F.3d 733, 736 (6th Cir. 2003)).
Non-constitutional errors are generally outside the scope of
section 2255 relief. United States v. Cofield, 233
F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a
section 2255 motion alleging non-constitutional error only by
establishing a “‘fundamental defect which
inherently results in a complete miscarriage of justice, or,
an error so egregious that it amounts to a violation of due
process.'” Watson v. United States, 165
F.3d 486, 488 (6th Cir. 1999) (quoting United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal
quotation marks omitted)).
of ineffective assistance of counsel are governed by the
two-pronged test set forth in Strickland v. Washington, 466
U.S. 668, (1984). First, the movant must show that
counsel's performance was deficient in that it fell below
an objective standard of reasonableness. Id. at 688.
“Constitutionally effective counsel must develop trial
strategy in the true sense - not what bears a false label of
‘strategy' - based on what investigation reveals
witnesses will actually testify to, not based on what counsel
guesses they might say in the absence of a full
investigation.” Ramonez v. Berghuis, 490 F.3d
482, 488 (6th Cir. 2007). Second, the movant must show that
he was prejudiced by the deficiency to such an extent that
the result of the proceeding is unreliable. Strickland, 466
U.S. at 688. It is not enough to show that the alleged error
“had some conceivable effect on the outcome of the
proceeding.” Id. Rather, the movant must show
that, but for counsel's errors, the result would have
been favorably different. Id. at 693. Failure to
make the required showing under either prong of the
Strickland test defeats the claim. Id. at 700.
has one general, overarching objection: “Before
touching on individual issues, Petitioner would state his
global objection to the magistrate which is that the Report
and the Recommendation does not focus on the collective
impact of trial counsel's errors, but instead seems to
focus on granular errors without looking at the broader
picture.” Obj. at 1, ECF No. 177 (emphasis added). A
global objection is, by its nature, unspecific and not
entitled to de novo review. Petitioner's argument is an
attempt at an end run around the Magistrate's Act, and
the requirement that he identify specific objections. Rather
than discussing Judge Morris's finding as to any
particular alleged error by counsel, Petitioner simply
asserts that Judge Morris failed to consider the
“broader picture.” Petitioner therefore asks the
Court to engage in a de novo review of every allegation in
his habeas petition. The Court declines the invitation to do
so. If every habeas petitioner with an IAC claim could compel
de novo review by simply claiming the magistrate judge failed
to consider the “broader picture, ” the functions
of the district court and magistrate judge would be
“effectively duplicated as both the magistrate and the
district court [would] perform identical tasks.” See
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). The purpose of the
Magistrate's Act would therefore be frustrated.
Petitioner's argument is misplaced. Firstly, the case he
cites does not support his contention. He quotes dicta from
one 9th Circuit opinion to support his contention that it is
improper to analyze counsel's performance at a granular
level. Id. (citing Browning v. Baker, 875
F.3d 444, 471 (9th Cir. 2017)). Petitioner quotes Browning
out of context. The Browning court found that, for the
purposes of granting a certificate of appealability, it was
inappropriate for the district court to separate out
individual “claims” of IAC based on instances of
alleged misconduct and certify only some of those
“claims” for appeal. Id. Thus, Browning by
no means stands for the proposition that it is inappropriate
to evaluate counsel's performance at a granular level.
Indeed, the court in Browning noted that a habeas petitioner
“may not rely on generalities in making [an IAC]
showing; he must point us to specific instances of
[counsel's] conduct that demonstrate incompetent
performance.” Id. (emphasis ...