United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
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.
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).
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
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.
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.]
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.]
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.
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.
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)).
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 ...