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Bradley v. United States

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

February 14, 2018

ROY C. BRADLEY, SR., Petitioner,

          Patricia T. Morris Magistrate Judge.



         On 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. 140.


         In his 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.[1] ECF No. 177, 178.



         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.


         To 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)).

         Claims 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.


         Petitioner 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.

         Furthermore, 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.[2] 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 ...

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