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 Marquise J.
Bowers' motion to vacate his sentence under 28 U.S.C.
§ 2255. (Doc. # 87). Consistent with local practice,
this matter was referred to United States Magistrate Judge
Robert E. Wier for the purpose of reviewing the motion and
preparing a Report and Recommendation
(“R&R”). On August 4, 2017, Judge Wier issued
his R&R (Doc. # 92) wherein he recommends that
Defendant's motion be denied. Defendant having filed
objections to the R&R (Doc. # 93), the R&R is ripe
for review. For the reasons set forth herein, Defendant's
Objections, (Doc. # 93), are overruled and
the R&R, (Doc. # 92), 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).
§ 2255 motion to vacate raises one argument: that the
Supreme Court case Mathis v. United States, 136
S.Ct. 2243 (2016), established “new facts as a basis
for the claim.” (Doc. # 87 at 1). Upon review of the
date of Defendant's conviction and the date the motion
was filed, and noting that more than nine (9) years had
elapsed in between, Judge Wier ordered Defendant to show
cause why his motion should not be dismissed. (Doc. # 89).
Judge Wier also noted that, based upon on the record in front
of him, equitable tolling would not apply. Id. at 3.
Defendant filed a motion arguing that that he should be
afforded equitable tolling. (Doc. # 90). The United States
responded, (Doc. # 91), and on August 4, 2017, Judge Wier
issued his R&R. (Doc. # 92). Defendant timely raised one
specific objection, arguing that Judge Wier erred in
concluding that equitable tolling was not applicable. (Doc. #
Equitable Tolling is not applicable to Defendant's
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
imposes a one year statute of limitations for filing §
2255 motions. 28 U.S.C. § 2255(f). In his R&R, Judge
Wier found that Defendant's Judgment was entered on July
20, 2007, and became final on July 30, 2007. (Doc. # 92 at
2). He had one year from that date to file his § 2255
motion; instead, he waited until June 23, 2017, missing the
deadline by almost nine (9) years. Id. Under most
circumstances, a defendant who does not satisfy the one-year
statute-of-limitations imposed by AEDPA is barred from any
relief under the statute; however, the doctrine of equitable
tolling gives a court “authority to excuse late-filed
habeas claims in appropriate circumstances.” McCray
v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007).
Defendant's burden to prove that he is entitled to this
doctrine, and in order to meet that burden, he must show,
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” Freeman v.
Trombley, 483 Fed.Appx. 51, 55 (6th Cir. 2012) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010))
(internal quotations and citation omitted).
support of his objection, Defendant attempts to argue that
the “extraordinary circumstance” standing in his
way was the absence of the Supreme Court's
Mathis decision. (Doc. # 93 at 2). In addition to
this being a logically unsupportable argument, the Sixth
Circuit has clearly stated that Mathis is not to be
applied retroactively. In re Conzelmann, 872 F.3d
375 (6th Cir. 2017). Defendant also argues that his diligence
is shown through docket activity in his 2013 application for
a sentence reduction. Id. (referring to Docs. # 85
and 86). This argument is unavailing-simply filling up a
court's docket is not commensurate with “actively
pursu[ing] judicial remedies” to preserve one's
legal rights. Irwin v. Dep't. of Vet. Affairs,
498 U.S. 89, 96 (1990).
arguments are not persuasive. Judge Wier did not err in
finding that Defendant did not meet his burden of ...