United States District Court, E.D. Kentucky, Northern Division, Covington
L. Bunning, Judge
pro se, Defendant Gary Vanover filed a Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (Doc. # 59). In his Motion, Vanover indicates that
he is challenging his sentence pursuant to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). Id. Pursuant to the
Court's local practice, the Motion was referred to a
Magistrate Judge for preparation of a Report and
matter is presently before the Court on Magistrate Judge
Robert E. Wier's R&R (Doc. # 72), wherein he
recommends that the Court deny Vanover's Motion to
Vacate. Vanover having filed Objections to the R&R (Doc.
# 75), and the United States having filed no response and the
time for submitting such a response having expired, the
R&R is now ripe for the Court's review. For the
reasons that follow, Vanover's Objections are overruled
and the R&R is adopted as the opinion of the Court.
FACTUAL AND PROCEDURAL BACKGROUND
February 18, 2011, Vanover pleaded guilty to Count One of the
Indictment, which charged him with possession of a firearm by
a felon in violation of 18 U.S.C. § 922(g)(1). (Doc. #
53). Vanover's plea agreement contained a detailed
factual basis for the charged conduct, and informed him that
he was waiving the right to appeal or collaterally attack his
“guilty plea, conviction, and sentence.”
Id. The Court also conducted a thorough
rearraignment and plea colloquy, where Vanover asserted he
was able to review the plea agreement, and was reminded of
the rights he was waiving, including his right to trial.
(Doc. # 64 at 19-21).
21, 2011, Vanover was sentenced to 188 months'
imprisonment, to be followed by a 3 year period of supervised
release. (Docs. # 52, 54, and 55). Vanover did not file a
direct appeal. Rather, he filed the instant § 2255
Motion on June 23, 2016, purportedly premised on
Johnson. (Doc. # 59).
may grant relief under 28 U.S.C. § 2255 if the defendant
establishes that: (i) the sentencing court imposed his
sentence in violation of the Constitution or laws of the
United States; (ii) the court lacked jurisdiction to impose
the sentence; (iii) the sentence imposed exceeded the maximum
authorized by law; or (iv) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a).
to 28 U.S.C. § 636(b)(1)(B), a district court judge may
refer dispositive matters to a magistrate judge for the
preparation of a report and recommendation. “[T]he
magistrate judge must promptly conduct the required
proceedings” and “enter on the record a
recommendation for disposing of the matter, including any
proposed findings of fact.” 28 U.S.C. §
636(b)(1)(B). If a party files objections to the
recommendation, a district court must then consider those
objections de novo and “accept, reject, or
modify the recommendation, receive further evidence, or
resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59(b)(3). The
objections must be specific; “vague, general or
conclusory objections . . . [are] tantamount to a complete
failure to object.” Cole v. Yukins, 7 F.
App'x 354, 356 (6th Cir. 2001) (internal quotations
omitted). Moreover, “an ‘objection' that does
nothing more than state a disagreement with a
magistrate's suggested resolution, or simply summarizes
what has been presented before, is not an
‘objection' as that term is used in this
context.” VanDiver v. Martin, 304 F.Supp.2d
934, 938 (E.D. Mich. 2004).
R&R, Magistrate Judge Wier found that Vanover had waived
his right to collaterally attack his sentence and that the
waiver in his plea agreement was valid because he entered his
plea knowingly and voluntarily. (Doc. # 72 at 5-9). Despite
concluding that the collateral attack waiver in Vanover's
plea agreement was valid and operative, Magistrate Judge Wier
considered Vanover's substantive arguments and determined
that they were meritless. Id. at 9-12.
has objected to the Magistrate Judge's R&R, arguing
that he is entitled to relief based on Mathis v. United
States, 136 S.Ct. 2243 (2016). As a preliminary matter,
the Court notes that Vanover raised this very argument in his
Reply (Doc. # 71), and Magistrate Judge Wier explained in his
R&R that § 2255(f)'s “statute of
limitations would block Vanover from employing
Mathis.” (Doc. # 72 at 4 n.4). Objections,
like these, that do “nothing more than state a
disagreement with a magistrate's suggested resolution, or
simply summarize[ ] what has been presented before” are
not valid “objections.” Van Diver, 304
F.Supp.2d at 938; see also Holl v. Potter, No.
C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15, 2011)
(“Objections that merely restate arguments raised in
the memoranda considered by the Magistrate Judge are not
proper, and the Court may consider such repetitive arguments
waived.”). Although the Court believes it could simply
overrule Vanover's Objections on this ground, it will
briefly review Magistrate Judge Wier's recommendation out
of an abundance of caution.
Vanover's plea and collateral attack waiver are
has not directly challenged his waiver as involuntary or
unknowing. Instead, he argues that the collateral attack
waiver does not apply to a “possibly unconstitutional
sentence” under Johnson, and the same logic
should apply under Mathis. (Doc. # 75 at 2-3). The
Magistrate Judge thoroughly considered the record and
determined that Vanover's collateral attack waiver was
valid and operative. (Doc. # 72 at 5-9).
Vanover's waiver of his rights to be valid, “it
must be ‘an intentional relinquishment or abandonment
of a known right or privilege.'” McCarthy v.
United States, 394 U.S. 459, 466 (1969) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
“A plea is valid if it is entered knowingly,
voluntarily, and intelligently, as determined under the
totality of the circumstances.” United States v.
McMillon, 89 F. App'x 561, 563 (6th Cir. 2004)
(citing Brady v. United States, 397 U.S. 742, 749
(1970); Boykin v. Alabama, 395 U.S. 238, 242-44
(1969)). “The record should reflect a full
understanding of the ...