United States District Court, E.D. Michigan, Northern Division
Magistrate Judge Patricia T. Morris
OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION,
DENYING MOTION TO VACATE, DENYING CERTIFICATE OF
APPEALABILITY, DENYING LEAVE TO APPEAL IN FORMA PAUPERIS,
GRANTING MOTION FOR EXTENSION OF TIME AND DENYING MOTION FOR
LEAVE TO FILE AN AMENDED COMPLAINT
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
April 12, 2017, a First Superseding Indictment charged
Petitioner with conspiracy to possess with intent to
distribute and to distribute cocaine and heroin in violation
of 21 U.S.C. §846 and 841(a)(1)(Count 1) and with
possession with intent to distribute cocaine base, cocaine,
and heroin in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C)(Count 3). ECF No. 183. On September 11, 2017,
Petitioner pleaded guilty to Count 1 of the indictment,
pursuant to a Rule 11 plea agreement. ECF No. 449. On
December 21, 2017, a judgment was entered committing
Petitioner to the Bureau of Prisons for 292 months. ECF No.
509. Petitioner did not appeal his conviction or sentence.
September 17, 2018, Petitioner filed a motion to vacate his
sentence under 28 U.S.C. 2255 on the basis of ineffective
assistance of his appointed counsel, Jeffrey J. Rupp. ECF No.
588. The motion was referred to Magistrate Judge Morris and
on January 4, 2019, she recommended that Petitioner's
motion be denied. ECF No. 623. In her recommendation, she
explained that “[p]ursuant to Rule 72(b)(2) of the
Federal Rules of Civil Procedure, ‘[w]ithin 14 days
after being served with a copy of the recommended
disposition, a party may serve and file specific written
objections to the proposed findings and
recommendations.” Id. at 11. Accordingly, the
deadline for filing objections to the report and
recommendation was January 18, 2019. On January 15, 2019,
Petitioner filed a motion to extend the objection deadline.
ECF No. 633. The next week, he filed three objections to
Judge Morris's report and recommendation. ECF No. 638.
two months later, Petitioner filed a motion for leave to file
an amended motion for post conviction relief. ECF No. 650.
The Government filed a response opposing the motion. ECF No.
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.”
raises three objections to the report and recommendation,
which will be addressed in turn.
first objection is that Judge Morris misrepresented his claim
that his “prior conviction for ‘delivery' of
a controlled substance was categorically broader than the
term controlled substance offense at 4B1.2(b).” ECF No.
638. This is the same argument Petitioner presented in his
original motion. See ECF No. 623 at 2
(“Petitioner's §2255 motion to vacate his
sentence asserts that his trial counsel was ineffective for
failure to object to use of a prior Michigan conviction for
delivery of narcotics less than 50 grams as a predicate
offense for enhancement as a career offender under the
sentencing guidelines, §4B1.2(b), citing Mathis v.
United States…”). Petitioner's argument
was without merit when he presented it to Judge Morris and it
is still without merit. Accordingly, Petitioner's
objection will be overruled.
report, Judge Morris provided an overview on the issue of
predicate offenses under the Sentencing Guidelines. ECF No.