United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATIONS, DENYING PLAINTIFF'S MOTION TO VACATE
SENTENCE UNDER 28 U.S.C. § 2255, GRANTING
GOVERNMENT'S MOTION TO DISMISS, DENYING CERTIFICATE OF
APPEALABILITY, AND DENYING IFP ON APPEAL
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
December 9, 2015, Defendant, Tracy Leigh Lafond, was indicted
for one count of distributing child pornography, one count
receiving child pornography, and one count possessing child
pornography. ECF No. 1. On January 31, 2017, Defendant pled
guilty to Count Two receiving child pornography. See
ECF Nos. 56, 60. Defendant was sentenced on June 26, 2017 and
judgment was entered on June 29, 2017. ECF No. 69. On July 6,
2017, Defendant filed a notice of appeal. ECF No. 70. On
January 9, 2018, the Court of Appeals granted the
Government's motion and dismissed Defendant's appeal.
ECF No. 85.
6, 2019, Plaintiff filed a Motion to Vacate his sentence
under 28 U.S.C. § 2255. ECF No. 90. Respondent, United
States of America, filed a Motion to Dismiss Petitioner's
Motion to Vacate as untimely on May 15, 2019. ECF No. 95.
Both motions were referred to Magistrate Judge Morris. ECF
Nos. 92, 96.
August 8, 2019, Judge Morris filed her report and recommended
granting Respondent's Motion to Dismiss, denying
Petitioner's Motion to Vacate, and dismissing the civil
case. ECF No. 100. In her Report and Recommendation Judge
Morris addressed the one-year statute of limitations for
Motions to Vacate from the Antiterrorism and Effective Death
Penalty Act of 1906 (“AEDPA”). She calculated the
final date for Petitioner to file a Motion to Vacate was
April 9, 2019, but Petitioner did not furnish the petition to
prison authorities until April 17, 2019. She also noted that
due to Petitioner's ability to file his notice, motion,
and reply while in custody, Petitioner was not entitled to
equitable tolling. Therefore, Judge Morris recommended
denying Petitioner's Motion to Vacate because it was
August 28, 2019, Petitioner filed a “Motion to Object
the Petitioner's Denial of Motion” (ECF No. 101)
and a second list of objections without a title (ECF No.
103). Petitioner's documents ECF Nos. 101 and 103 both
list objections to Judge Morris' Report and
Recommendation. Therefore, ECF No. 101 will be construed an
objection to the Report and Recommendation instead of a
separate motion. For the following reasons, Plaintiff's
objections will be overruled.
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.”
presents six objections in ECF No. 101 and three objections
in ECF No. 103. Multiple objections reference
Petitioner's time “in transit” or his time in
the “SHU.” The Court does not have
Petitioner's prison records or the details of these times
“in transit” or in the “SHU.”
However, the Court will take notice of the events that
transpired in the case at the time of each of these times in
question. In his first objection in ECF 101, Petitioner
claims he “received no correspondence from the Courts,
to argue any objections or dismissals from the
Government” when he was “in transit” from
June 13, 2019 to August 13, 2019. ECF No. 101. The Court
takes notice of the fact that June 13, 2019-August 13, 2019
is after Defendant was sentenced and after Petitioner filed
his Motion to Vacate (ECF No. 90). Since Petitioner submitted
his Motion to Vacate in May 2019 before he was “in
transit, ” Petitioner's allegations of lack of
correspondence from the Court from June through August 2019
is irrelevant to the untimely filing of his Motion to Vacate.
As such, Petitioner's objection will be overruled.
second objection is that he was in the “SHU” or
“in transit” without access to his legal
documents in December 2018 and February and March 2019.
Id. Petitioner had been sentenced and had his appeal
denied by that point in time, but had not yet filed his
Motion to Vacate. ECF Nos. 69, 85. The deadline for his
Motion to Vacate was April 9, 2019. Petitioner signed his
Motion to Vacate on April 16, 2019 and placed it in the
prison mail on April 17, 2019. Id. There was
sufficient time between the time when Petitioner was not
“in transit” (beginning March 22, 2019) until the
time the motion was due (April 9, 2019) for Petitioner to
timely file his motion to vacate. Petitioner's objection
will be overruled.
third objection is a general claim about his lack of legal
education. Id. This objection is not specific to
Judge Morris' Report and Recommendation findings and will
fourth objection is an allegation of government corruption
that resulted in a longer sentence and allegations of
attorney misconduct or malpractice. Id.
Petitioner's fifth objection states that he never signed
an appeal waiver and his attorney did not file objections
when his original appeal was dismissed. Id.
Petitioner's sixth objection accuses the government of
“filing false documents and using false information to
obtain a conviction.” Id. These claims are not
specific to Judge Morris' Report and Recommendation
findings regarding his Motion to Vacate being untimely and as
such will be overruled.
second set of objections, ECF No. 103, includes three
objections to Judge Morris' Report and Recommendation.
Petitioner's first objection is that his time to file a
2255 motion should have been tolled while he was “in
transit” in February 2019 because he lacked access to
his legal papers. Id. However, despite
Petitioner's continued claims that he still does not have
access to his legal papers, Petitioner managed to file one
set of objections to Judge Morris' Report and
Recommendation on August 21, 2019. Id. The
objections to the Report and Recommendation were due on
August 22, 2019. Therefore, Petitioner's ...