United States District Court, E.D. Kentucky, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge
matter is before the Court on Defendant David Roscoe
Hale's motion to vacate his sentence under 28 U.S.C.
§ 2255. (Doc. # 90). Consistent with local practice,
this matter was referred to United States Magistrate Judge
Hanly A. Ingram for the purpose of reviewing the motion and
preparing a Report and Recommendation
(“R&R”). On July 28, 2017, Judge Ingram
issued his R&R (Doc. # 107) wherein he recommends that
Defendant's motion be denied. Defendant having filed
objections to the R&R (Doc. # 108), the R&R is ripe
for review. For the reasons set forth herein, Defendant's
Objections, (Doc. # 108), are overruled and
the R&R, (Doc. # 107), is adopted as the
findings of fact and conclusions of law of the Court.
Standard of Review
Court reviews de novo those portions of the R&R
to which specific objections have been filed. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no
objections are made, or the objections are vague or
conclusory, the Court is not required to review under a
de novo, or any other, standard. Thomas v.
Arn, 474 U.S. 140, 150 (1985); United States v.
Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1
(E.D. Ky. Aug. 8, 2017). Allegations in pro se
habeas complaints are held to a less stringent standard and
given more “liberal construction, ” however
“inartfully pleaded.” Franklin v. Rose,
765 F.2d 82, 84-85 (6th Cir. 1985) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972); Burris v. United
States, 430 F.2d 399, 403 (7th Cir.1970), cert.
denied, 401 U.S. 921 (1971)).
objection that does “nothing more than state a
disagreement with a magistrate's suggested resolution, or
simply summarizes what has been presented before, is not an
‘objection' as that term is used in this
context.” United States v. Shephard, No.
5:09-cr-81-DLB, 2106 WL 9115464, at *1 (E.D. Ky. Sept. 18,
2016) (quoting VanDiver v. Martin, 304 F.Supp.2d
934, 938 (E.D. Mich. 2004); Holl v. Potter, No.
C-1-09-618, 2011 WL 4337038, at *1 (S.D. Ohio Sept. 15,
2011)); see also Shabazz-el-Bey v. Daley, No.
2:115-cv-173-DLB, 2016 WL 7217633, at *1 (E.D. Ky. Dec. 13,
2016). Thus, “objections that merely restate arguments
in the memoranda considered by the Magistrate Judge are not
proper, and the court may consider such repetitive arguments
waived.” Holl, 2011 WL 4337038 at *1. Where an
objection is simply a repetition of what the Magistrate Judge
has already considered, it fails “to put the Court on
notice of any potential errors in the Magistrate's
R&R.” Shephard, 2016 WL 9115464 at *1
(citing VanDiver, 304 F.Supp.2d at 938).
Defendant's objections are overruled.
has raised four objections to Judge Ingram's R&R,
(Doc. # 108), each of which shall be analyzed in turn. The
findings of fact and conclusions of law in the R&R to
which Defendant has not objected are adopted as the
Court's. Arn, 474 U.S. at 150.
first objects, (Doc. # 108 at 1-2), to Judge Ingram's
determination that the record of proceedings refutes
Defendant's allegations that his counsel was ineffective
for failing to alert the Court of Defendant's hearing
issues. (Doc. # 107 at 4-5). Defendant's § 2255
motion had argued that his counsel was ineffective because he
had not raised Defendant's particular hearing impairment
to the Court. (Doc. # 90 at 2). Defendant's objection is
a clear repetition of his motion, alleging again that he
needed to be facing a speaker to understand, and that his
counsel was ineffective for failing to raise the issue. (Doc.
# 108 at 1-2). As such, Defendant has failed to put this
Court on notice of any potential errors in Judge Ingram's
analysis concerning Defendant's hearing impairment
allegations, and this argument is waived.
second specific objection, (Doc. # 108 at 2-3), is to Judge
Ingram's determination that Defendant had not met his
burden to show that his plea agreement was unenforceable.
(Doc. # 107 at 5-7). Defendant had argued that he could not
knowingly and intelligently waive his right to appeal or
collaterally attack a not-yet-imposed sentence. (Doc. # 90 at
6-7). In his objection, Defendant makes three arguments: that
the recent Supreme Court case Lee v. United States,
147 S.Ct. 1958 (2017) is analogous and controls; that a
previous assurance by Defendant's counsel as to the
amount of controlled substance Defendant would be charged
with changes the law; and that the record only reflects what
was said, not what Defendant heard.
last of these arguments-that a knowing and intelligent waiver
is unenforceable because there is no way to know what
Defendant heard, as opposed to what was said-is absurd.
Furthermore, it wholly fails to address the objection. The
second argument is similarly flawed, in that it asks this
Court to ignore the record of the proceedings and instead
make a separate finding that Defendant's waiver was
unenforceable because of factual allegations found nowhere
else but in Defendant's Objections. (Doc. # 108 at 3).
Defendant's third argument-that the Court should look to
Lee-also fails. In Lee, the Supreme Court
held that a lawful permanent resident of the United States
had been denied effective assistance of counsel when
petitioner's counsel had told him that he would not be
deported if he pled guilty. Lee, 137 S.Ct. at 1962.
The question presented to the Supreme Court was whether the
petitioner could show he had been prejudiced by this advice.
Id. Because “deportation was the determinative
issue, ” petitioner would have gone to trial in lieu of
pleading if he had known that deportation was a possibility
following his acceptance of a plea deal. Id. at
1967-68. The petitioner was thus able to show a
“‘reasonable probability that, but for [his]
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.'”
Id. at 1969 (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)). The arguments in Lee are
entirely unrelated to Defendant's arguments. Defendant
has attempted to argue that he could not waive his right to
appeal an unknown sentence, despite clear record proof that
he knew the maximum possible sentence. This is decidedly
different from Lee, where there is no evidence that
deportation was a part of the plea agreement. Defendant's
attempted reliance upon Lee is not persuasive.
third specific objection, (Doc. # 108 at 3), is to Magistrate
Ingram's determination that the record did not support
Defendant's assertion that he was never advised of the
elements of the offense. (Doc. # 107 at 8-10). Once again,
the record refutes that argument. As Judge Ingram stated in
his R&R, the plea agreement contained the elements of the
offense he was charged with, the parties discussed the
modified plea agreement at Defendant's rearraignment, and
the Court adjourned for two hours so Defendant and his
counsel could discuss the modifications. (Doc. # 107 at 9).
In open court, Defendant averred that he ...