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United States v. Vanover

United States District Court, E.D. Kentucky, Northern Division, Covington

April 11, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
GARY VANOVER DEFENDANT

          ORDER

          David L. Bunning, Judge

         I. INTRODUCTION

         Proceeding pro se, Defendant Gary Vanover filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. # 59).[1] 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 Recommendation (“R&R”).

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).

         On June 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).

         III. ANALYSIS

         A. Legal Standards

         A court 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).

         Pursuant 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).

         B. Vanover's Objections

         In his 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.

         Vanover 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.

         1. Vanover's plea and collateral attack waiver are valid

         Vanover 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).

         For 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 ...


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