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United States v. Price

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

January 18, 2018




         This matter is before the Court on a report and recommendation (DE 414) from Magistrate Judge Robert E. Wier. For the following reasons, defendant Price's objections (DE 415) are DENIED and the Court follows the recommended disposition (DE 414).


         Defendant Terran Ricardo Price was charged with one count of conspiring to distribute Oxycodone by a grand jury on June 13, 2013. (DE 1). Price pleaded guilty, without a written plea agreement, on January 29, 2014. (DE 211). On May 28, 2014, this Court sentenced Price to a total prison sentence of 132 months, followed by a five-year term of supervised release. (DE 272, 275). After an appeal by Price, the United States Court of Appeals for the Sixth Circuit affirmed the sentence. (DE 378). Price timely submitted and later supplemented a § 2255 motion to vacate (DE 384, 398, 408, 409); the government responded to that motion (DE 412); and Price has replied (DE 413). Pursuant to standard practice in this district, the Court referred the motion to Magistrate Judge Robert E. Wier to review and recommend a disposition. (DE 414). Price now objects to that recommended disposition (DE 415), and the Court reviews his objections below.

         II. ANALYSIS

         A. Legal Standards

         For relief under 28 U.S.C. § 2255, Price “must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-497 (6th Cir. 2003)). In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. See McQueen v. United States, 58 F.App'x 73, 76 (6th Cir. 2003) (per curiam).

         This Court makes a de novo determination of those portions of a recommended disposition to which objections are made. See 28 U.S.C. § 636(b)(1)(c). In this case, Price makes four specific objections to the Magistrate Judge's findings, including attacks on the legal standards used and overall treatment of the record by the Magistrate Judge, followed by several other miscellaneous objections. The Court reviews each objection below.

         1. Objection One: Applicability of Federal Rule of Civil Procedure 8

         When replying (DE 413) to the government's response to his habeas petition (DE 412), Price argued that Federal Rule of Civil Procedure 8 required all claims that were not specifically denied in its response to “be considered conceded by the government.” (DE 413 at 3). Specifically, Price alleged that the government failed to respond to his arguments as to the ineffectiveness of his sentencing counsel in failing to preserve Bostic objections, the “harms and prejudices arising from all of Price's sentencing counsel[‘]s errors, ” and other “key allegations” allegedly showing counsel's ineffectiveness and originally raised by Price. (DE 413 at 3). The Magistrate Judge found that Rule 8 did not have such an effect on these proceedings (DE 414 at 2, n. 3), and now Price objects. The Court agrees with the Magistrate Judge.

         Specific rules have been promulgated to govern § 2255 proceedings in United States District Courts. Rule 5(b) provides that an answer to a § 2255 motion must “address the allegations in the motion.” 28 U.S.C. § 2255, Rule 5(b). This language is laxer than that found in the preclusive pleading requirements of Federal Rule of Civil Procedure 8, in which a responding party must “state in short and plain terms its defenses to each claim asserted against it; and admit or deny the allegations asserted against it by an opposing party.” Fed. R. Civ. Pro. 8(b)(1); see also United States v. Boniface, 601 F.2d 390, 392-393 (9th Cir. 1979). After review of the pleadings, the Court finds that the government has met their burden to “address” the allegations of the § 2255 motion-it is clear that the government specifically contested, among other things, Price's ineffective assistance of counsel claims throughout its response. See (DE 412). Further, at least one Circuit has found that even if Federal Rule of Civil Procedure 8 were to apply, the preclusive effect of § 8(b)(6) would not be applicable in habeas proceedings since responses by the government are not required pleadings as contemplated by § 8(b)(6). See Tarver v. United States, 344 Fed.Appx 581, 583 (11th Cir. 2009) (“Because the plain language of Rule 4(b) of the § 2255 Rules did not require the district court to order the government to file a response to Tarver's § 2255 motion, we hold that pursuant to Rule 8(b)(6), the government was not deemed to have admitted Tarver's allegation of ineffective assistance of counsel by failing to deny the allegation specifically in its response to his motion”).

         2. Objection Two: Price's Bostic claims

         Price argues that his trial counsel failed to properly preserve objections during sentencing, which later prejudiced Price during appellate review. (DE 398-2 at 23-26). The Magistrate Judge found this argument to be without merit, and Price now objects. (DE 415 at 6-7). After review of Price's original and supplemented arguments, the sentencing transcript, and the Sixth Circuit Opinion, the Court agrees with the Magistrate Judge.

         First, Price argues that his trial counsel failed to properly preserve his objections to two enhancements that were applied to his sentence: U.S.S.G. §§ 2D1.1(b)(1) and 3B1.1(b). But contrary to Price's representations to this Court, the objections were properly preserved and reviewed by the Sixth Circuit under the normal reasonableness and abuse of discretion standard, see (DE 378 at 2-5), not under plain error, as Price now contends. (DE 398-2 at 23-25; DE 415 at 6-7). Review of the sentencing transcript shows that, in response to the classic Bostic question, Price's trial counsel specifically lodged “an objection to the overruling of our objections, ” a response that this Court specifically noted would preserve all objections for the record. (DE 375 ...

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