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United States v. Benge

United States District Court, E.D. Kentucky, Southern Division, London

May 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JIMMY D. BENGE, Defendant.

          ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         This matter is before the Court on a report and recommendation (DE 729) from Magistrate Judge Hanly A. Ingram, and subsequent objections filed by Defendant Benge (DE 734). While the objections were filed out of time and after the Court adopted Judge Ingram's recommendation, the Court will consider the objections as a motion to reconsider. For the following reasons, defendant's objections (DE 734) are DENIED and the Court follows the recommended disposition (DE 729).

         I. INTRODUCTION

         A detailed background of this case is contained in the Magistrate Judge's opinion previously adopted by this Court. (DE 729). The Court now recounts only those portions necessary to its determination of the pending motion.

         In November 2012, Benge was indicted for participating in a conspiracy to distribute oxycodone. (DE 1). In March 2013, a second superseding indictment added a murder charge, alleging that Benge, along with others, “conspire[d] to kill Eli Marcum with intent to retaliate against him for providing information to a law enforcement officer relating to the commission of a Federal offense….” (DE 117 at 2).

         On May 12, 2014, Benge and codefendant Gerald Sizemore jointly moved to dismiss the indictment, alleging a violation of their due process rights. (DE 393-1). In particular, the two alleged that Kentucky State Police Detective Jeff Senters improperly destroyed “a knife found near the victim” and “a partially burnt yellow telephone cord located about a yard from the victim's head.” Id. at 1-3.

         While the Court was in the process of scheduling a follow-up hearing on the motion to dismiss, Benge and Sizemore moved for rearraignment.[1] Pursuant to a binding plea deal with Benge, the government agreed to dismiss with prejudice the murder charge, and Benge agreed to accept the maximum sentence on the oxycodone conspiracy charge. (DE 586 at 1-2). The plea agreement also contained a waiver of appeal and collateral-attack rights. See (DE 586 at 2). Judge Thapar accepted Benge's guilty plea to the drug conspiracy. (DE 507).

         Before sentencing, Benge moved to withdraw his guilty plea, arguing that “his roles in the conspiracy to distribute oxycodone allegation have been substantially exaggerated and are false, ” that he was actually innocent of the murder, that “the plea negotiation process was rushed, ” and that he therefore had agreed to an excessive and unfair sentence. (DE 528-1 at 3). Judge Thapar denied the motion, sentenced Benge consisted with the plea deal, and entered judgment. (DE 556). The United States Court of Appeals for the Sixth Circuit subsequently affirmed the judgment and upheld the denial of Benge's motion to withdraw his plea. (DE 630).

         On December 27, 2016, Benge timely filed a motion under 28 U.S.C. § 2255, alleging several ineffective assistance of counsel claims, a separate Sixth Amendment violation, and a Brady violation. (DE 642; DE 729 at 4-5). Magistrate Judge Ingram recommended this Court deny Benge's motion and issue no certificate of appealability. (DE 729). In his recommendation, Judge Ingram specifically noticed the parties of their appeal rights, and that failure to make timely objections consistent with those rights normally resulted in waiver of further appeal or review by the District Court and Court of Appeals. (DE 729 at 27). Benge failed to file timely objections to the recommendation, but did file a notice of appeal with the Sixth Circuit approximately one month after the Magistrate Judge's recommendation was filed. (DE 730). The Sixth Circuit dismissed the appeal for lack of subject matter jurisdiction (DE 732); this Court subsequently adopted the Magistrate Judge's recommendation (DE 733); and Benge then filed nearly forty pages of handwritten objections (DE 734). Since Benge's objections were filed prior to this Court's entry of judgment on the recommendation, and his intent to challenge the Magistrate Judge's recommendation was clear from his notice of appeal to the Sixth Circuit, the Court has construed his objections as a motion to reconsider its prior ruling adopting the recommendation. (DE 738).

         II. ANALYSIS

         Even considering Benge's objections to the Magistrate Judge's recommendation, the Court finds adoption of the recommendation appropriate. For relief under 28 U.S.C. § 2255, Benge “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 Fed.Appx. 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).

         A. Threshold Issues

         1. Waiver Provision

         Benge's plea deal included a provision in which Benge waived the right to appeal the guilty plea, conviction, and sentence of his case. (DE 586). And except for claims of ineffective assistance of counsel, Benge waived the right to collaterally attack the guilty plea, conviction, and sentence. Id. In his § 2255 motion, Benge made arguments based on claims other than ineffective assistance of counsel, including alleged Brady violations and alleged violations of the Sixth Amendment based on the government's seizure of Benge's assets. (DE 646 at 41-50).

         The Magistrate Judge found that the waiver made by Benge was knowing and voluntary, and therefore Benge had waived all arguments outside the ineffective assistance of counsel context. (DE 729 at 9-10). The Magistrate Judge based his finding on the Sixth Circuit's Order affirming the District Court's judgment, and finding that Benge could not appeal his conviction and sentence:

The district court discussed the appeal-waiver provision of Benge's plea agreement with him during rearraignment. Benge acknowledged the appeal-waiver provision and stated that he understood it and had no questions about it. The district court emphasized that Benge waived “almost every right [he had] to challenge this conviction and sentence upon the court's acceptance of the plea agreement. Benge stated that he understood. Nothing in the record suggests that Benge's assent to the plea agreement, and specifically to the appeal-waiver provision, was unknowing or involuntary. Thus, the appeal-waiver provision in the plea agreement is enforceable and Benge may not appeal his conviction and sentence.

         (DE 630 at 2). Thus, it is clear that the enforceability of the plea, including its waiver provision, has been directly appealed and decided. Absent exceptional circumstances, such as an intervening change in the law, Benge may not use a § 2255 motion to relitigate an issue that was raised on appeal. See Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996). So to the extent that Benge alleges the waiver itself was not entered into voluntarily and knowingly, the Court disagrees, and finds no basis to relitigate this issue. See (DE 734 at 19) (arguing the Magistrate Judge failed to differentiate between Benge's attack on the plea and the waiver); See also (DE 734 at 20-21) (arguing Judge Thapar's comments at sentencing showed that the waiver was not voluntary and knowing). Similarly, while Benge continues to argue that his counsel was ineffective for procuring and allowing an involuntary waiver, see (DE 734 at 22-23), these arguments are not persuasive, since the waiver has already been found to have been voluntary on appeal. See Coley v. Bagley, 706 F.3d. 741, 752 (6th Cir. 2013) (“Omitting meritless arguments is neither professionally unreasonable nor prejudicial”).

         In an attempt to avoid the waiver, Benge presents two further arguments. First, Benge argues that issues regarding Brady arose after he entered the waiver and should be excluded from its reach. (DE 734 at 24). Even if this were a valid legal ground, Benge's motion to dismiss the indictment shows that, prior to accepting the plea deal, he both knew of Detective Senters' destruction of evidence, and potential contradictions in statements made by Senters. See e.g., (DE 393-1 at 7). The statements that Senters was later indicted for occurred at the hearing on Benge's motion to dismiss, months before Benge chose to plead guilty. (DE 431; DE 500). Thus, Benge knew the factual circumstances underlying the Senters indictment well before he pled. At sentencing, Benge's counsel made clear that he believed Senters had previously perjured himself, and Senters had “entered an explanation for his false statements” through counsel on the record of the case within a week or two of the statements. (DE 622 at 55-58). The Court is therefore not persuaded by Benge's argument that this issue is outside the scope of the waiver because it arose only after the execution of Benge's appeal-waiver, or constituted exculpatory evidence that was withheld by the government.

         Second, Benge argues that his Sixth Amendment claim regarding the government's seizure of his assets, which allegedly prevented him from obtaining counsel, was based on a decision by the Supreme Court issued after he entered the waiver, and thus is not subject to it. (DE 734 at 29-30). Since the appeals-waiver is enforceable, this argument is without merit. See In re Garner,664 Fed.Appx. 441, 443 (6th Cir. 2016) (“[W]here developments in the law later expand a right that a defendant has waived in a ...


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