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United States v. Hornback

United States District Court, E.D. Kentucky, Central Division, Frankfort

June 18, 2014

UNITED STATES OF AMERICA, Plaintiff/Respondent,
RONALD CRAIG HORNBACK, Defendant/Movant. Criminal Action No. 3:10-13-DCR


DANNY C. REEVES, District Judge.

Defendant Ronald Craig Hornback has moved the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 103] He has also filed a motion/brief challenging the Court's subject matter jurisdiction. [Record No. 102] Pursuant to local practice, the matter was referred to a United States magistrate judge for review and issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B).

On May 6, 2014, United States Magistrate Judge Robert E. Wier issued his report which recommended that Hornback's motions be denied and that a Certificate of Appealability should not issue. Hornback then filed his objections to the magistrate judge's report and recommendations. [Record No. 113] Having conducted a de novo review of the portions of the recommendation to which he objects, the Court will adopt the magistrate judge's recommended disposition and deny the relief sought by Hornback.


On September 2, 2010, Hornback was indicted and charged with five counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). [Record No. 1] On November 24, 2010, the United States moved for a hearing regarding a potential conflict of interest concerning Hornback's retained counsel, T. Sherman Riggs and Nathan Riggs, because their defense strategy implicated Hornback's son while they were simultaneously representing his son in state court. [Record No. 32] Hornback's counsel acknowledged the conflict and moved to withdraw after consulting the Kentucky Bar Association Ethics Hotline. [Record Nos. 38, 39] The motion was granted and attorney Joyce Merritt was appointed upon Hornback's request pursuant to the provisions of the Criminal Justice Act ("CJA"). [Record Nos. 42, 43]

On April 11, 2011, Hornback entered a guilty plea to one count of receiving of child pornography. [Record No. 69] He was subsequently sentenced to 121 months imprisonment and a life-term of supervised release. [Record Nos. 75, 79] After Hornback appealed to the United States Court of Appeals for the Sixth Circuit, Merritt moved to withdraw under Anders v. State of Cal., 386 U.S. 738 (1967). The Sixth Circuit granted the motion to withdraw and affirmed Hornback's sentence.[1] [Record No. 91]

On July 22, 2013, Hornback moved the Court to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.[2] [Record No. 103] Hornback also amended his motion and filed an additional brief arguing that the Court lacked subject matter jurisdiction. [Record Nos. 102, 104] Hornback makes several claims of error in his motion and subsequent amendment, arguing that: (i) Merritt had a conflict of interest because she served as an advisory board member for the Boys and Girls Club of America; (ii) his plea was involuntary due to coercion and his lack of understanding of the charges against him; (iii) he was constructively denied his right to counsel because Merritt provided no assistance; (iv) he received ineffective assistance of counsel because Merritt did not investigate his case or challenge an allegedly defective search warrant; (v) his sentence was unconstitutionally enhanced; (vi) the Court lacked subject matter jurisdiction over the proceeding; (vii) the United States lacked territorial jurisdiction over the matter; and (viii) the Court committed "structural error" by ordering that Hornback's previous counsel be replaced by CJA counsel. [ See Record Nos. 103, 104.]

On May 6, 2014, Magistrate Judge Wier recommended that Hornback's § 2255 motion be denied. Specifically, he concluded that: (i) Hornback's waiver was valid and enforceable; (ii) Hornback's plea was voluntary; (iii) Hornback's sentencing guideline range was properly calculated; (iv) the Court had both subject matter and territorial jurisdiction over the offenses; (v) Hornback failed to demonstrate that his counsel's performance fell below professional standards or that a different result would have occurred but for Merritt's alleged errors; and (vi) Hornback's claim of structural error is without merit. [Record No. 112] The magistrate judge also recommended that no Certificate of Appealability should be issued. [ Id. ]


In seeking relief under 28 U.S.C. § 2255, a defendant may assert that the sentence was imposed in violation of the Constitution or federal law, that the court lacked jurisdiction, that his or her sentence exceeded the maximum penalty authorized by law, or that the sentence is otherwise subject to collateral attack. Id. To prevail on a claim of constitutional error, a defendant must establish an error of constitutional magnitude which had a substantial and injurious effect or impact on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citations omitted). Additionally, to prevail on a claim of non-constitutional error, the defendant must show a "fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.'" Id. (citations omitted).

A district court must make a de novo determination of those portions of a magistrate judge's recommendation to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).


A. The Magistrate Judge's Involvement

Hornback first argues that he never consented to the involvement of a magistrate judge. [Record No. 113, p. 1] He asserts that consent of both parties is required before a magistrate judge may issue a report and recommendation. [ Id. (citing 28 U.S.C. § 636(c))] Thus, he claims, the magistrate judge had no authority to address his claims. [ Id. ]

This matter was referred to United States Magistrate Judge Robert E. Wier for consideration and issuance of a report and recommendation. See General Order 10-14 ("All motions to vacate, correct or modify a sentence pursuant to 28 U.S.C. § 2255... shall be divided equally by blind rotating draw and referred among full-time United States Magistrate Judges...."). This process does not require the consent of any party. 28 U.S.C. § 636(b)(1)(B) ("[A] judge may... designate a magistrate judge to... submit to a judge of the court proposed finding of fact and recommendations... of applications for post[-]trial relief made by individuals convicted of criminal offenses...."). Further, 28 U.S.C. § 636(b)(1)(B) "clearly authorizes" such referrals and does not require consent. Miller v. U.S. Dep't of Justice, 905 F.2d 1538 (6th Cir. 1990); see also McCarthy v. Bronson, 500 U.S. 136, 139 (1991) (classifying 28 U.S.C. § 636(b)(1)(B) referrals as "nonconsensual").

While Hornback argues that he never consented under 28 U.S.C. § 636(c), that section only applies to a magistrate judge's ability to enter final judgment. 28 U.S.C. § 636(c) ("Upon the consent of the parties, a full-time United States magistrate judge... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case[.]"). Here, Magistrate Judge Wier did not enter final judgement and Hornback's lack of consent is of no consequence.

B. Waiver of Collateral Attack

Hornback also generally argues that the waiver provision of his plea agreement is invalid because it was the product of coercion. [Record No. 113, pp. 2-3 (citing Boykin v. Alabama, 395 U.S. 238, 242-43 (1969)] A valid waiver of the right to collaterally attack a conviction and sentence bars relief under § 2255. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). But, to be valid, the waiver must be knowing, intelligent, and voluntary. Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001). Rule 11 of the Federal Rules of Criminal Procedure requires that the Court "inform the defendant of, and determine that the defendant understands... the terms of any plea agreement provision waiving the right to appeal or collaterally attack the sentence." Fed. R. Crim. P. 11(b)(1)(N). Complying with the Rule sufficiently demonstrates that the defendant entered into a waiver knowingly, voluntarily, and intelligently. United States v. Sharp, 442 F.3d 946, 950 (6th Cir. 2006); United States v. Wilson, 438 F.3d 672, 674 (6th Cir. 2006).

Under Rule 11 of the Federal Rules of Criminal Procedure, a district court verifies that a defendant's plea is voluntary and that he or she understands his or her constitutional rights, the nature of the crime charged, and the consequences pleading guilty. The court must also confirm that there is a factual basis supporting the guilty plea. United States v. Goldberg, 862 F.2d 101, 106 (6th Cir. 1988); Fed. R. Crim. P. 11. The Sixth Circuit has concluded that a trial court's proper plea colloquy cures any misunderstandings that a defendant may have about the consequences of a plea. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)

At the time his guilty plea was entered, Hornback affirmed that he had read the plea agreement and discussed it with his attorney. Likewise, Hornback acknowledged that he understood all relevant terms and conditions. [Record No. 87, pp. 7-8] Hornback also admitted that he was not subject to other promises, threats, or coercion. [ Id., p. 12] Moreover, the collateral attack and appeal waiver provision was specifically explained to Hornback and he indicated that he understood it. [ Id., p. 17] Hornback also affirmed that he was satisfied with Attorney Merritt's advice and representation. [ Id., p. 7]

Additionally, Hornback's plea agreement stated that by executing it he had read it and understood its terms. [Record No. 75, p. 5 ¶ 16] Hornback swore in court that these facts were true and "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). These statements present a "formidable barrier" to collateral proceedings. Id. Although Hornback now claims that his waiver was procured through coercion, he does not state with specificity any facts supporting the assertion. Without more, and considering the affirmative statements made by Hornback concerning his waiver provision, the Court concludes that ...

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