United States District Court, E.D. Kentucky, Southern Division, London
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court upon Magistrate Judge Robert E.
Wier's Recommended Disposition (also known as a
“Report and Recommendation, ” or
“R&R”) [R. 240] on the motion to vacate [R.
210] filed pro se by Brian Hamilton, pursuant to 28
U.S.C. § 2255. The motion was fully briefed, and, on
November 9, 2017, Judge Wier appointed CJA counsel to
represent Hamilton on his motion. [R. 221] An evidentiary
hearing was held on December 15, 2017. [R. 230.] Judge Wier
issued his R&R on January 22, 2018, recommending that the
Court grant Hamilton § 2255 relief. [R. 240 at 1.] For
the reasons stated below, the Defendant's Motion to
Vacate [R. 210] will be DENIED IN PART and GRANTED IN PART.
Hamilton filed a motion to vacate pursuant to 28 U.S.C.
§ 2255 seeking habeas relief for certain alleged
sentencing errors and ineffective assistance of counsel. [R.
240.] The Magistrate Judge conducted an evidentiary hearing
on the issues raised in Hamilton's motion to vacate and,
thereafter, issued a written R&R wherein he recommends
granting Hamilton habeas relief solely on the ineffective
assistance of counsel claim. [R. 230; R. 240.] In his
recommendation, Magistrate Judge Wier thoroughly set out his
proposed findings of fact and conclusions of law. [R. 240.]
Judge Wier's Recommended Disposition advised the parties
that any objection to the R&R must be filed within
fourteen days. [Id. at 27.] The time to file
objections has passed, and neither party has objected nor
sought an extension of time to do so.
this Court must make a de novo determination of
those portions of the Recommended Disposition to which
objections are made. 28 U.S.C. § 636(b)(1)(c). When no
objections are made, as in this case, this Court is not
required to “review . . . a magistrate's factual or
legal conclusions, under a de novo or any other
standard.” See Thomas v. Arn, 474 U.S. 140,
151 (1985). Parties who fail to object to a magistrate
judge's report and recommendation are also barred from
appealing a district court's order adopting that report
and recommendation. United States v. Walters, 638
F.2d 947 (6th Cir. 1981). Nevertheless, this Court has
examined the record and agrees with Magistrate Judge
Wier's Recommended Disposition.
sole issue on which Judge Wier recommends granting §
2255 habeas relief relates to Hamilton's claim of
ineffective assistance of counsel. Hamilton asserts that he
was not granted the discretionary one-level reduction for
acceptance of responsibility, pursuant to United States
Sentencing Guidelines § 3E1.1(b), due to the
representations of his trial counsel. [See Id. at
8.] The essence of Hamilton's claim is that his trial
counsel did not effectively communicate to him that not
accepting a plea offer, which contained the three-level
reduction for acceptance, by the Government's deadline
might result in the loss of the third level of acceptance.
[Id. at 10-11.] In advising his client,
Hamilton's trial counsel seemed to ignore the deadline
presented by the Government and seemed to rely solely on the
Court's scheduling order. [Id. at 17.] Because
Hamilton was not properly advised on the deadline for
accepting the Government's plea offer, when he ultimately
pled guilty he did not receive the third level reduction for
acceptance of responsibility. [see Id. at 20-21.]
Judge Wier determined that this level of representation fell
below the “prevailing professional norms”
established in Strickland v. Washington, 466 U.S.
2052 (1984). [Id. at 18.]
calculating a criminal defendant's sentencing guidelines,
the Court may only grant the third level reduction for
acceptance of responsibility when presented with a motion
from the Government. See U.S. Sentencing Guidelines
Manual § 3E1.1(b) (U.S. Sentencing Comm'n 2016).
Although the Magistrate Judge recommends granting § 2255
habeas relief based on the ineffective assistance of
Hamilton's trial counsel, the Court still has not been
presented with a motion from the Government to grant Hamilton
the third level reduction for acceptance.
and the Court being sufficiently advised, it is hereby
ORDERED as follows:
1. The Recommended Disposition [R. 240] as
to Defendant Brian Hamilton is ADOPTED as
and for the Opinion of the Court;
2. Defendant's Motion to Vacate, pursuant to 28 U.S.C.
§ 2255, [R. 210] will be
DENIED as to Defendant's claims of
3. Defendant's Motion to Vacate [R. 210]
will be GRANTED as to relief sought due to
the ineffective assistance of trial counsel;
4. A resentencing hearing is hereby scheduled for
Tuesday, May 1, 2018, at
2:30p.m. in the United States Courthouse in
5. Should either party wish to brief the issue of relief to
be granted and the sentence to be imposed, all briefs shall
be filed by April 17, 2018;
6. Should the parties stipulate to the relief to be granted
in advance of the hearing, the Government is hereby directed
to file such stipulation in the record by April 24, 2018; and
7. The warden of FTC Oklahoma City SHALL
deliver Brian Hamilton to the custody of the United States
Marshal so that he may be brought before the Court on
Tuesday, May 1, 2018 at 2:30p.m. The Marshal
SHALL return Hamilton to BOP ...