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United States v. Ware

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

July 6, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JASON ALLEN WARE, Defendant/Movant,



         This matter is before the court on the Recommended Disposition filed by United States Magistrate Judge Robert E. Wier. [R. 150.] The Defendant, Jason Ware, has filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Consistent with local practice, Judge Wier reviewed the motion and ultimately recommends that the Court deny the § 2255 motion in its entirety.

         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 & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         Defendant Ware filed timely objections to the Recommended Disposition. [R. 150.] The Court acknowledges its duty to review Ware's filings under a more lenient standard than the one applied to attorneys, because Ware is proceeding pro se. See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985). Under this more lenient construction, some of the objections are sufficiently definite to trigger the Court's obligation to conduct a de novo review. See 28 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, as well as applicable procedural rules. For the following reasons, Ware's objections will be OVERRULED.


         Judge Wier's Recommended Disposition accurately sets forth the factual and procedural background of the case. The Court mentions the below key facts to frame its discussion and analysis, but, overall, chooses to incorporate Judge Wier's discussion of the record into this Order.

         Jason Ware was indicted, along with other defendants, by a grand jury on December 28, 2015, for one count of conspiring to knowingly and intentionally distribute pills containing oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 846, and three counts of possession with the intent to distribute pills containing oxycodone in violation of 21 U.S.C. § 841(a)(1). [R. 150 at 2.] Defendant Ware, by way of a plea agreement, pleaded guilty to the conspiracy count on July 22, 2014. [R. 98.]

         Ware was subsequently sentenced to ninety-six months of imprisonment, with three months of supervised release to follow [See R. 115.]. After the judgment was entered, Ware moved for a new trial and asked the Court to toll the one-year period of limitation for filing a § 2255 motion. The undersigned denied both motions, because Ware had not proceeded to trial in the first instance and because he did not provide evidence of any extraordinary circumstances requiring tolling of the statute of limitations. [R. 128.] Ware then filed the instant § 2255 motion in December 2015. [R. 132.]


         As Judge Wier explained in his Recommended Disposition, Ware's motion asserts three different, but closely related, grounds for relief: (1) that the Unites States violated Brady v. Maryland, 373 U.S. 83 (1963) and various Federal Rules of Criminal Procedure by improperly withholding exculpatory and impeachment evidence; (2) that his legal counsel was ineffective because of his failure to pursue, discover, or request the Brady materials; and (3) since the Government withheld Brady information, the plea agreement was not knowing or voluntary. [R. 150 at 4.] Judge Wier explained in detail both the procedural and substantive problems inherent in these claims, which are also inherent in Ware's subsequent objections. Although the Court agrees with Judge Wier's analysis of the procedural bars applicable to Ware's claims for relief, the Court nevertheless addresses Ware's substantive objections to the Recommended Disposition on the merits for the sake of completeness.


         Mr. Ware's first objection insists the Government “withheld exculpatory and impeachment evidence” amounting to a Brady violation. See Brady, 373 U.S. 83. Ware alleges the Government withheld crucial information pertaining to Deputy Sheriff Matt Brown's criminal actions. [R. 152 at 13.] Brown, a former Franklin County Sheriff's Deputy, was involved in the investigation of Ware's criminal conduct but was later federally indicted and convicted himself. See United States v. Matthew Christian Brown, No. 3:14-cr-8-GFVT (E.D. Ky.). This objection, however, is properly overruled.

         In Stickler v. Greene, the Supreme Court articulated three elements that need to be proved by a movant in order to successfully claim a Brady violation: (1) the evidence at issue must be favorable to the accused because it is impeaching or exculpatory evidence; (2) that evidence must have been either willfully or inadvertently suppressed by the state; and (3) the defendant must have been prejudiced because of the Government's actions. See 527 U.S. 263, 281-82. But even where these three elements are satisfied, no Brady violation occurs if the defendant knew or should have known about the information, or if the defendant had access to a source containing the important information. See, e.g., United States v. Tavera, 719 F.3d 705, 716 (6th Cir. 2013) (quoting Jones v. Bagley, 696 F.3d 475, 487 (6th Cir. 2012)).

         As Judge Wier noted, Ware clearly had sources at his disposal to access the information surrounding Deputy Brown's indictment and criminal history. A Brady claim does not succeed when the information can be accessed by “looking at public records, ” see Storey v. Vasbinder, 657 F.3d 372, 380 (2011) (quoting Owens v. Guida, 549 F.3d 399, 418 (6th Cir. 2008)), and Brown's criminal history and indictment were publicly accessible. Further, Ware claims to have had personal knowledge of Brown's misconduct. When Brady information is this easily accessible to the defense, the Government has no obligation to turn over the information. See Bell v. Bell, 512 F.3d 223, 235 (2008). Finally, Ware pled guilty, and “the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea ...

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