Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Smith

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

June 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL D. SMITH, Defendant. Civil Action No. 15-cv-07307-JMH-HAI

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood, Senior U.S. District Judge

         This matter is before the Court on the Recommended Disposition entered by Magistrate Judge Hanly A. Ingram [DE 962]. Said action was referred to the magistrate for the purpose of reviewing the merit of Defendant's Motion to Vacate, Set Aside, or Correct His Sentence pursuant to 28 U.S.C. § 2255 [DE 920], as well as a host of other motions filed by Defendant Smith, including his Motion for Summary Judgment on his § 2255 Motion [DE 945] and his Motion for Writ of Mandamus for Immediate Release and Demands [DE 960], which seeks relief on the same grounds as his § 2255 Motion. In his Report and Recommendation, the Magistrate Judge recommends that the Court dismiss Smith's motions. Defendant has filed Objections [DE 963] to that Recommendation and this matter is ripe for consideration. For the reasons stated below, the Motions will be denied. Judgment will issue by separate order.

         I.

         Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). If objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). Generally, “a judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636. However, when the petitioner fails to file any objections to the Recommended Disposition, as in the case sub judice, “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). “Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review.” Carson v. Hudson, 421 F.App'x 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)).

         II.

         As an initial matter, Defendant Smith has stated no cogent objection to the factual and procedural summary drawn from the record as set forth by the Magistrate Judge in the Recommended Disposition.[1] [See DE 962 at 2-5, Page ID#: 13362-13365.] Accordingly, the Court accepts and adopts it as its own and incorporates it here by reference.

         Nor has he objected to the Magistrate Judge's statement of the law applicable to petitions for writs of habeas corpus under 28 U.S.C. § 2255, and the Court accepts and adopts it, reproducing here for the purposes of its analysis:

Under 28 U.S.C. § 2255, a federal prisoner may seek habeas relief because a sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such a sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255. To prevail on a § 2255 motion alleging constitutional error, a defendant must establish that the error had a “substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). By contrast, to obtain habeas relief based on an alleged non-constitutional error, a defendant must establish a “fundamental defect which inherently results in a complete miscarriage of justice or an error so egregious that it amounts to a violation of due process.” Id. at 488 (citing Hill v. United States, 368 U.S. 424, 428 (1962)). As the § 2255 movant, a defendant bears the burden of proving his or her allegations by a preponderance of the evidence. McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”).

[DE 962 at 5-6, Page ID# 13365-13365.] Nonetheless, as did the Magistrate Judge, the Court “recognizes that Defendant is proceeding pro se, or without the assistance of an attorney...[, ]” and affords his pleadings a comparatively lenient construction. [Id. at 6, Page ID# 13366 (citing Castro v. United States, 540 U.S. 375, 381-83 (2003); Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985)).]

         III.

         The Court first addresses Smith's objection to the Magistrate Judge's Recommended Disposition with respect to his claim that ineffective assistance of counsel deprived him of counsel in violation of the Sixth Amendment to the United States Constitution. Specifically, he complains that his counsel failed to file some 18 “Pre-Trial Jurisdictional motions, ” including a motion for a bill of particulars, a motion for co-conspirator statements, a motion for the disclosure of the identity of informants, and a "Letter to the U.S. Attorney Requesting Discovery.” He contends that his counsel failed to defend him “in accordance to the State of Kentucky Bar Association” and he seeks an investigation into counsel's performance, demanding a return of a portion of the fees paid to counsel in the pre-trial period.[2]

         Smith does not, however, object to the Magistrate Judge's summation of the relevant law with respect to his ineffective assistance of counsel claims, which the Court accepts and adopts:

To successfully assert an ineffective assistance of counsel claim, a defendant must prove both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (noting that a defendant must prove ineffective assistance of counsel by a preponderance of the evidence). In order to prove deficient performance, a defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. At 687.
A defendant meets this burden by showing “that counsel's representation fell below an objective standard of reasonableness” as measured under “prevailing professional norms” and evaluated “considering all the circumstances.” Id. at 688. However, a defendant is not permitted to second-guess trial counsel's strategic decisions. Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002). Thus, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689 (internal quotations omitted). Notably, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id.
Deficient performance is considered constitutionally prejudicial only when “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. In order to prove prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Thus, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. Courts may approach the Strickland analysis in any order, and an insufficient showing on either prong ends the inquiry. Id. at 697.
. . . In order to establish a viable claim of ineffective assistance of counsel based upon counsel's failure to file pretrial motions, a defendant must be able to demonstrate that the basis for the motion is meritorious, and that there is a reasonable probability that the outcome of the trial would have been different. See generally Kimmelman v. Morrison, 477 U.S. 365 (1986) (describing this standard in the context of a Fourth Amendment claim). Defendant must establish this by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); McQueen v. United States, 58 F. App'x 73, 76 (6th Cir. 2003) (per curiam) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have the burden of sustaining their contentions by a preponderance of the evidence.”).

[DE 962 at 7-8, Page ID#: 13367-13368.] Further, appellate counsel is not required to raise meritless arguments on direct appeal. See Martin v. Mitchell, 280 F.3d 594, 607 (6th Cir. 2002) (appellate counsel not ineffective for failing to raise an issue that would have failed); see also, e.g., Upchurch v. Bruce, 333 F.3d 1158 (10th Cir. 2003), Bethea v. Artuz, 126 F.3d 124 (2d Cir. 1997).

         Smith has provided no factual or legal support upon which the Court might evaluate the validity of the motions which he claims that counsel should have asserted-not even a precarious foundation upon which the Court could begin to determine whether there was a reasonable probability that the outcome of his trial would have been different had additional motions been filed. Without meritorious motions or effective actions that might have been taken, he cannot establish that counsel was ineffective for failing to raise the issue or take the action or that he suffered any prejudice. There can be no relief based on a theory of ineffective assistance of counsel. Therefore, any claim of ineffective assistance of counsel cannot excuse Defendant's procedural default. Nor does Defendant's own ignorance of the law excuse a procedural default. See Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (petitioner's ignorance of the law is not enough to constitute cause to excuse procedural default in habeas corpus petition under 28 U.S.C. § 2254).

         For example, the Court cannot imagine how a request for additional discovery might have changed the outcome in this case. Counsel for this defendant filed a Request for Discovery under Rule 16(a) [DE 56] very early in this matter. Further, the undersigned recalls that defense counsel and the United States referenced discovery and a substantial opportunity to review of an extraordinary amount of documents and other evidence in this matter on several occasions during the pretrial period. Notably, counsel for Defendant Smith was present at a hearing on co-defendants' motions to continue trial, heard on February 23, 2009 [DE 86], at which the Court heard from counsel for co-defendant Ray Garton:

I have been at the post office numerous times already. It's going to take several months, just to be candid with you. I put that -- I put that in my motion, just some idea of how much is there. There is 50 or 60 boxes, bankers boxes filled with documents plus 50 some accordion files of documents that the government seeks to introduce in its case in chief; and then just drawers of miscellaneous documents in addition to what I have already described.

[DE 862 at 6-7, Page ID#: 12467-12468.] At the same hearing, counsel for the United States described the availability of the evidence to defense counsel without objection ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.