United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. Caldwell States District Judge.
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.
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.)
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.
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.
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.
Schneider filed objections to the recommendation. Milby also
filed his own objections.
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.
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.
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
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.
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