United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION TO VACATE, DENYING CERTIFICATE
OF APPEALABILITY, DENYING LEAVE TO APPEAL IN FORMA PAUPERIS,
DENYING MOTION TO STRIKE
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
September 23, 2015, Defendant Daniel Jason Harrington was
indicted on three counts of distribution of methamphetamine
and one count of criminal forfeiture. ECF No. 1. On April 13,
2016, a superseding indictment was returned charging
Harrington with numerous counts related to distribution of
methamphetamine and one count of criminal forfeiture. ECF No.
54. On February 7, 2017, Harrington pleaded guilty to Count
Eleven of the superseding indictment, which charged him with
knowingly possessing methamphetamine with intent to
distribute. ECF No. 121. Harrington's Rule 11 plea
agreement included an appeal waiver. ECF No. 121 at 8-9.
that waiver, Harrington appealed his sentence. ECF No. 143.
The Sixth Circuit granted the Government's motion to
dismiss the appeal based on the appeal waiver in
Harrington's Rule 11 plea agreement. The court noted that
“Harrington does not dispute that his plea hearing
comported with Federal Rule of Criminal Procedure 11(b), and
he does not argue that he entered the agreement unknowingly
or involuntarily.” Id. at PageID.739. It
further held that “where, as here, the ‘defendant
testified at his plea hearing that he had reviewed the plea
agreement with counsel, that he understood all of the
agreement's provisions, and that his guilty plea was not
coerced,' a court may only conclude that he entered the
‘plea agreement-and accepted the waiver of appellate
rights contained therein-knowingly and voluntarily.'
United States v. Calderon, 388 F.3d 197, 200 (6th
Cir. 2004).” Id.
subsequently filed a motion to vacate his sentence under 28
U.S.C. §2255. ECF No. 148. The motion was referred to
Magistrate Judge Morris who issued a report recommending that
Harrington's motion be denied. ECF No. 163. Harrington
subsequently filed twelve objections to Judge Morris's
recommendations. ECF No. 168.
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.”
Harrington's twelve objections will be addressed in turn.
first objection is that he did not plead guilty to
“possessing with intent to distribute 5 grams or more
of methamphetamine, ” but instead pleaded guilty to
aiding and abetting.
164 at PageID.923. This assertion is contradicted by the Rule
11 Plea Agreement which provides:
Defendant will enter a plea of guilty to count 11 of the
third superseding indictment which charges him with,
aided and abetted by another, knowingly possessing
with intent to distribute 5 grams or more of methamphetamine,
also known as crystal meth and Ice, in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(B).
121 at PageID.580 (emphasis added). Grammatically, the word
“him” is the subject of the sentence and the word
“possessing” is the verb. Within the sentence is
the phrase “aided and abetted by another.” The
word “another” is the subject and the words
“aided and abetted” are the verbs. Accordingly,
Harrington was the party possessing the methamphetamine and
another individual was the party aiding and abetting
Harrington in his possession of the methamphetamine.
Harrington pleaded guilty to possession of methamphetamine
with intent to distribute.
second objection concerns a question asked by his attorney,
Mr. Perry, during Harrington's Rule 11 colloquy. After
reviewing the plea agreement with Harrington, Judge Morris
allowed Mr. Perry to question Harrington in order to
“question him as to the factual basis” of the
plea agreement. ECF No. 134 at PageID.379. Mr. Perry
initially asked Harrington if he was pleading guilty to
aiding and abetting others in the possession of
methamphetamine. The Government swiftly identified Mr.
Perry's mistake. Mr. Perry corrected himself and asked
Harrington if he was pleading guilty to possession of
contends that he was “blind-sided” by Mr.
Perry's statements because “Mr. Perry never took
the time with this addition to advise or counsel
Petitioner.” ECF No. 164 at PageID.924.
Petitioner's contention is contradicted by the plea
agreement which, as explained above, explicitly stated that
Petitioner was pleading guilty to possession of
methamphetamine. His contention is further contradicted by
the plea hearing transcript which provides:
MR. PERRY: Mr. Harrington, you are pleading guilty to aiding
and abetting known and unknown individuals in the crime of
possession of methamphetamine, also known as crystal meth; is
THE DEFENDANT: Yes.
MR. PERRY: And those -- MS. PARKER: Excuse me, it's
possession with intent to distribute.
MR. PERRY: I'm sorry, I misspoke. With that
clarification; is that true?
THE DEFENDANT: Yes.
MR. PERRY: And this occurred sometime between December 14 --
excuse me, ...