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Beavers v. United States

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

April 26, 2019

D-1, DAMARLIN MARKEEL BEAVERS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Magistrate Judge Patricia T. Morris

         ORDER 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

          THOMAS L. LUDINGTON, UNITED STATES DISTRICT JUDGE

         On 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.

         On 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.

         Almost 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. 659.

         I.

         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.

         II.

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

         A.

         Petitioner's 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.

         In her report, Judge Morris provided an overview on the issue of predicate offenses under the Sentencing Guidelines. ECF No. ...


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