United States District Court, E.D. Kentucky, Central Division, at Frankfort
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
Defendant Edward E. Cook has moved the Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 134] In accordance with local practice, the motion was referred to a United States magistrate judge for review and issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On June 16, 2015, United States Magistrate Judge Hanly A. Ingram issued a Recommended Disposition, summarizing the factual and procedural history of the case and recommending that Cook's motion be denied. [Record No. 152] Additionally, Magistrate Judge Ingram recommended that a Certificate of Appealability not be issued. Neither Cook nor the United States has filed objections to the magistrate judge's Recommended Disposition.
While this Court must make a de novo determination of those portions of the magistrate judge's recommendations to which an objection is made, 28 U.S.C. § 636(b)(1)(c), "[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). Moreover, a party who fails to file objections to a magistrate judge's proposed findings of fact and recommendation waives the right to appeal. See United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008); Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986).
Here, Cook has not filed objections to the report, and the time to do so has expired. Nevertheless, having fully considered the record, and having considered the motion de novo, the Court agrees with the magistrate judge's analysis and conclusions concerning the issues raised by Cook's § 2255 motion. Additionally, the Court agrees that a Certificate of Appealability should not issue.
Cook is currently serving a 148-month sentence of imprisonment for his involvement in the robbery of First Farmers Bank in Gratz, Kentucky. [Record No. 98] The robbery occurred on March 27, 2010. [Record No. 115, p. 6] According to witnesses, a green Dodge truck pulled up to the bank with two individuals. Between the two, they wore blue hooded jackets, a blonde wig, a bandana, sunglasses, latex gloves, and a ski mask. One carried a black duffel bag and the other wielded a black revolver. [ Id. at 7, 12-13, 17, 75] The robber holding the firearm ordered an employee to open the bank vault, while the other forced a second employee into the vault. After filling the duffel bag with money from the vault and the teller drawer, the robbers placed the two employees in the vault and absconded. [ Id. at 12, 71-72]
Following an investigation by law enforcement, Cook and his brother, Bryan Kelly, were indicted by a grand jury on counts of aiding and abetting and brandishing a firearm during a crime of violence. [Record No. 1] The defendants' trial began on August 15, 2011. [Record No. 64] During trial, the parties stipulated that Cook owned a 1999 green dodge pick-up truck. [Record No. 117, p. 127] Government witnesses testified, inter alia, that in the weeks following the robbery the co-defendants were flush with cash and alluded to - and even confessed - their involvement in the heist. [Record Nos. 116, pp. 205, 246-47; 117, pp. 83-88]
According to the defendant, on the day of the robbery, he and his brother spent the day working on his truck at his home in Frankfort, Kentucky, leaving only to obtain various truck parts and food. [Record No. 117, pp. 218-28] He testified that neither brother was in Gratz, Kentucky at the time of the robbery. [ Id. at 234] However, a radio frequency engineer testified regarding the co-defendants' cell phone records at the time of the robbery, stating that their alibis were "virtually impossible." [Record No. 117, pp. 20-21] The United States presented evidence that a black revolver was recovered at Kelly's residence and latex gloves were found in Kelly's truck. [ Id. at 33]
At the conclusion of the prosecution's case, Cook's attorney moved for acquittal under Rule 29 of the Federal Rules of Criminal Procedure. [Record No. 117, pp. 160-168] His attorney argued that the government had not produced sufficient evidence to warrant a conviction and had entirely failed to present evidence used during the robbery was ever in Cook's possession. [ Id. at 161] Ultimately, these arguments were found unavailing. [ Id. at 173; Record No. 118, pp. 2-4] The case was submitted to the jury and both defendants were found guilty. [Record No. 118, pp. 101-109]
Cook appealed, but the United States Court of Appeals for the Sixth Circuit affirmed this Court's judgment on October 3, 2013. [Record No. 126] On September 25, 2014, Cook filed the pending motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. [Record No. 134] Cook claims, inter alia, ineffective assistance of counsel, Fourth Amendment violations, and insufficient evidence. [ Id. at 4-5, 7-8] However, under the facts presented, Cook has not demonstrated that he is entitled to the relief he seeks.
A. Ineffective Assistance of Counsel
Cook initially claims that his trial counsel was ineffective for: (i) failing to investigate the government's case; (ii) failing to object to the introduction of weapons; (iii) "arguing in support of courts [sic] questioning entry of evidence regarding firearm and admission of firearm evidence"; (iv) failing to cross-examine a witness; (v) failing to object to the prosecution's "use of words in opening and closing statements alluding to defendant could' have or might' ...