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United States v. Milby

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

May 30, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
GARY MILBY, ET AL. DEFENDANTS

          OPINION AND ORDER

          Karen K. Caldwell States District Judge.

         This matter is before the Court on defendant Gary Milby's motion (DE 705)to vacate his sentence under 28 U.S.C. § 2255. The Court referred the matter to a magistrate judge who conducted a hearing and filed a report in which he recommends that the Court deny the petition. Milby has filed objections to the recommendation. For the following reasons, the Court will overrule the objections.

         I. Background

         By judgment dated May 16, 2012, this Court sentenced Milby to 240 months (20 years) in prison after he was found guilty of various counts of mail, wire, and securities fraud in connection with a scheme to defraud investors in oil and gas wells. At trial and in the forfeiture proceedings, the government proved that the proceeds derived from the fraud were over $30, 000, 000. Milby appealed his conviction and the Sixth Circuit Court of Appeals affirmed the Court's judgment. (DE 661, Opinion.)

         Milby now moves to vacate his sentence under § 2255. The Court referred the motion to a magistrate judge, who found that Milby raises two overarching issues in his motion. First, Milby alleges that his trial counsel was ineffective, most significantly by coercing him to decline a plea offer by the United States that included a much lighter sentence than Milby ultimately received. Second, Milby argues that James Skinner, a receiver charged with collecting on Milby's debts, improperly provided materials to the United States to aid the government's investigation of Milby.

         The magistrate judge conducted a video status conference at which the United States confirmed that it sent e-mails to Milby's trial counsel that constituted a formal plea offer. Accordingly, the magistrate judge determined that an evidentiary hearing was necessary to determine what actions Milby's trial counsel took in response to the plea offer. The magistrate judge appointed attorney Timothy Schneider to represent Milby on this issue and then conducted a hearing.

         Both Schneider and Milby agree that Schneider was appointed to represent Milby only with regard to the issue of whether Milby's trial counsel coerced him to reject the United States' plea offer. The hearing dealt solely with that issue. After the hearing, the magistrate judge issued a report and recommendation in which he concluded that Milby was not entitled to relief on either his claim regarding Skinner's role in the criminal investigation or on his claim of ineffective assistance of counsel.

         Attorney Schneider filed objections to the recommendation. Milby also filed his own objections.

         II. Analysis

         In his objections, attorney Schneider "objects generally to the entire report and recommendation ... as not being supported by the evidence and applicable law." "A general objection to the entirety of the Magistrate [Judge]'s report has the same effect as would a failure to object." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Accordingly, attorney Schneider essentially files no objections to the magistrate judge's report.

         Instead of filing objections to the magistrate judge's recommendation, attorney Schneider moves for a rehearing. In support of this request, Schneider states that Milby left him messages after the hearing indicating that he "was not provided with all of his medication and that he was 'foggy' on the day of [the hearing] and 'he cannot even remembers his testimony before the Magistrate.'" The Court finds no reason for an additional hearing. With his objections, Milby submits an affidavit in which he states that he was last administered medication on June 13 before the hearing conducted on June 15. He states in his affidavit that, without medication, he experiences panic attacks and his mind jumps from thought to thought. He states that his blood pressure goes down, he stutters or passes out at times, and he cannot keep his mind on any one thing. He states that, on the morning of trial, he was "so disoriented that [he] went to pieces" and that the U.S. Marshals found him "unconscious" in the courthouse after the hearing.

         Milby, however, has presented no medical evidence indicating that the missed doses of medication affected his mental capacity or ability to comprehend matters at the hearing. The Court has reviewed the transcript of the hearing. At the beginning of the hearing attorney Schneider advised the magistrate judge that Milby had informed him prior to trial that he normally took as many as 12 medications to treat heart irregularities, blood pressure, and psychiatric conditions. Schneider advised the magistrate judge that Milby had informed him that he did not receive any of this medication on the day of the hearing or the day before the hearing. Milby stated that he received some medication the day before the hearing but that he had not received his "psych drugs" the night before the hearing and had received no drugs at all the day of the hearing. The hearing began at 9:14 a.m.

         Schneider told the magistrate judge that Milby had informed him that he was not certain whether the lack of medication had affected his judgment. Nevertheless, Schneider stated that he was communicating well with Milby on the day of the hearing. Schneider stated that Milby was "jumpy" and "nervous" but the magistrate judge noted that Milby said during a prior video conference that he becomes nervous for court appearances. In response to the magistrate judge's questions, Milby stated he knew where he was and the purpose of the hearing. Neither Milby nor Schneider requested that the magistrate judge postpone the hearing. Milby stated a couple of times during the hearing that his memory was "fuzzy" regarding certain events. However, that was to be expected. Milby was being asked to recall events that occurred about five years prior to the hearing. Milby was able to testify as to the relevant events at the hearing. The Court sees no indication in the transcript that Milby was unable to comprehend events or to participate meaningfully in the hearing.

         Further, Schneider does not explain what evidence or testimony he would present at a rehearing that he was unable to present at the initial hearing. Again, Milby was able to present testimony on the sole issue that requires a hearing: whether ...


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