United States v. Harrington

          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

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On 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.

         Despite 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.

         Harrington 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.

         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.

         Each of Harrington's twelve objections will be addressed in turn.

         A.

         Harrington's 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.

         ECF No. 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).

         ECF No. 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.

         B.

         Harrington's 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 methamphetamine.

         Harrington 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 that true?

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, ...