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United States v. Wilburn

United States District Court, E.D. Kentucky, Southern Division, London

June 26, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EDDIE RAY WILBURN, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge

         This matter is before the Court upon Eddie Ray Wilburn's pro se petition to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. [R. 827.] Consistent with local practice, this matter was referred to Magistrate Judge Hanly A. Ingram, who filed a Recommended Disposition recommending that Wilburn's motion be denied. [R. 909.]

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the Recommended Disposition or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the Recommended Disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the Magistrate's efforts and wastes judicial economy. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         Wilburn filed a number of timely and specific objections to the Recommendation, particularly when reviewing his filings under the more lenient standard applied to pro se petitioners. See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985); [R. 915.] Under this more lenient construction, Wilburn's objections are sufficiently definite to trigger this Court's obligation to conduct a de novo review. See U.S.C. § 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the pleadings, the parties' arguments, relevant case law and statutory authority, and applicable procedural rules. For the following reasons, Wilburn's objections will be OVERRULED.

         I

         Judge Ingram's Recommended Disposition accurately sets forth the factual and procedural background of the case, as well as the applicable standard of review for granting habeas relief pursuant to 28 U.S.C. § 2255. [See R. 909 at 1-4.] In June 2012, Eddie Ray Wilburn proceeded to trial and was found guilty by a federal jury of conspiring to manufacture and distribute methamphetamine, along with possessing equipment to manufacture controlled substances. [See R. 504; R. 659.] Wilburn and two of his co-defendants appealed, but the Sixth Circuit ultimately affirmed their convictions and sentences. See United States v. Collins, 799 F.3d 554 (6th Cir.), cert. denied, 136 S.Ct. 601 (2015). Wilburn now seeks habeas relief and, as explained above, the Court performs a de novo review of the legitimacy of his § 2255 petition.

         II

         Mr. Wilburn's initial § 2255 petition presented four main issues for Judge Ingram to analyze: the introduction of improper evidence at trial; a Johnson claim; a request for relief pursuant to Amendment 794 to the Sentencing Guidelines; and ineffective assistance of trial counsel based on a number of grounds. [See R. 827; R. 909.] Wilburn does not appear to take issue with Judge Ingram's analysis of the first ground, which was already litigated before the Sixth Circuit, in his objections. [See R. 915.] Conversely, Wilburn does address the other three grounds in his objections, and the Court considers those issues below, respectively.

         A

         In Wilburn's initial habeas motion, he contends his “career offender” status is invalid in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act's “crime of violence” definition. But, as the Supreme Court has now clarified, the Johnson decision did not invalidate the identically-worded residual clause of the United States Sentencing Guidelines, under which Wilburn was classified as a career offender. See Beckles v. United States, 137 S.Ct. 886 (2017). Judge Ingram detailed why Wilburn's Kentucky conviction for second-degree assault properly qualifies as a crime of violence under either the residual clause or the use of force clause in U.S.S.G. § 4B1.2(a) [see R. 909 at 6], and, in Wilburn's objections, he does not seem to dispute Judge Ingram's analysis. Instead, Wilburn maintains both his trial and appellate counsel were ineffective because they “failed to investigate the underlying facts” of that charge to “discover[ ] the circumstances of that offense.” [R. 915 at 1-2.]

         It is clear from Wilburn's objections that he does not believe he committed the crime of assault, but that is beside the point. Petitioners are not entitled to assert new arguments in their objections to a Magistrate's Recommended Disposition. See, e.g., Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000); United States v. Waters, 158 F.3d 933, 936 (6th Cir. 1998). Wilburn did not raise this argument regarding ineffective assistance of counsel as it relates to his career offender status in his initial petition, so, even under de novo review, the Court is not required to consider the issue. [See R. 827-1 at 3-8.] The Court reiterates that Judge Ingram accurately detailed why the Kentucky assault conviction qualifies as a predicate offense under either the residual clause or the use of force clause, and the Court overrules Wilburn's objection to his career offender classification.

         B

         Mr. Wilburn also contends Amendment 794 to United States Sentencing Guideline § 3B1.2 applies to his case, and he takes issue with Judge Ingram's reasoning as to whether a § 2255 petition is the proper vehicle for asserting such a claim for relief. [R. 915 at 2-3.] Unfortunately for Wilburn, Judge Ingram's Recommended Disposition contains an accurate rendition of the law on the matter.

         Initially, the Court points out that Wilburn's request for relief under Amendment 794 may be better construed as a motion for a sentence reduction under 18 U.S.C. § 3582(c). See, e.g., United States v. McDonald, 326 F. App'x 880, 882 (6th Cir. 2009) (noting a pro se defendant's post-conviction filings may be liberally construed, both for the sake of efficiency and out of fairness). While § 2255 petitions allow a petitioner to move to vacate or set aside his conviction on the whole, § 3582(c) proceedings are the mechanism a petitioner should use to seek a sentence reduction pursuant to a Guideline amendment. See, e.g., U.S.S.G. §1B1.10(a)(1) (“In a case in which a defendant is serving a term of imprisonment, and the guideline range applicable to that ...


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