United States District Court, E.D. Michigan, Northern Division
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
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
September 21, 2016, Petitioner Jake Henry Detzler
(Petitioner) pled guilty to two counts of abusive sexual
contact in violation of 18 U.S.C. §13, 1151, 1153, and
2244(a)(1). ECF No. 16. A judgment filed on January 12, 2017,
sentenced Petitioner to 120 months' incarceration on each
count, to be served consecutively, and five years of
supervised release on each count, to be served consecutively.
ECF No. 23. Petitioner did not file an appeal. On January 17,
2018, Petitioner filed the instant motion to vacate his
sentence pursuant to 28 U.S.C. § 2255 based on
ineffective assistance of counsel. ECF No. 24. The motion was
referred to Magistrate Judge Patricia T. Morris. ECF No. 26.
The government responded (ECF No. 29), and Petitioner replied
(ECF No. 30).
motion to vacate, Petitioner alleges four errors by his
counsel. First, Petitioner contends his counsel failed to
object to the multiplicity in counts one and two of the
indictment, which Petitioner contends constituted a single,
continuous course of conduct as opposed to two distinct
criminal acts. Mot. at PGID 108, ECF No. 24. Second,
Petitioner contends his counsel erred in failing to challenge
“whether the alleged level of ‘force' used by
the defendant in the charged conduct, was a categorical match
to the force element in 18 U.S.C. 2241(a)(1).”
Id. at PGID 109. Third, Petitioner contends his
counsel failed to investigate and review material evidence,
including “the stark and axiomatic discrepancies (and
‘reasonable doubt' raised by those discrepancies),
as contained in the statements of the victim and that of the
eyewitness to the alleged crime.” Id. Fourth,
Petitioner contends that his counsel provided erroneous
advice concerning his sentencing exposure, which caused him
to accept a plea agreement he would not have otherwise
accepted. Id. Judge Morris found that Petitioner had
failed to satisfy the two-prong test set forth in
Strickland v. Washington. 466 U.S. 668 (1984), and
that Petitioner had identified no factual issue to be
explored at an evidentiary hearing. Accordingly, Judge Morris
recommended denying Petitioner's motion. ECF No. 31.
Petitioner filed objections to Judge Morris's report and
recommendation. ECF No. 32.
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.
raises two objections to Judge Morris's report. The