United States District Court, E.D. Kentucky, Southern Division, London
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on a Recommended Dispositions
filed by former United States Magistrate Judge Robert E.
Wier. The Defendant, Debbie Jones, first filed a pro
se motion to vacate her sentence pursuant to 28 U.S.C.
§ 2255. [R. 37.] Judge Wier reviewed the motion, and
recommends the Court deny Ms. Jones the requested relief and
deny issuance of a certificate of appealability. [R. 49.] Ms.
Jones has not filed any objections to Judge Wier's
Jones entered a guilty plea to a violation of 21 U.S.C.
§ 841(a)(1), Possession with Intent to Distribute 50
Grams or More of a Mixture or Substance Containing
Methamphetamine on October 24, 2016. [R. 22; R. 24; R. 31.]
In doing so, she waived the right to appeal her guilty plea
and conviction, but reserved the right to appeal her
sentence. [R. 22 at 3.] Additionally, Ms. Jones waived the
right to attack collaterally her guilty plea, conviction, and
sentence, except for claims of ineffective assistance of
counsel. Id. Ms. Jones stated at both rearraignment
and sentencing that she was fully satisfied with the
representation she received from her attorney. [R. 42 at
13-14; R. 43 at 4.] On March 6, 2017, this Court sentenced
Ms. Jones to 120 months imprisonment followed by eight years
of supervised release. [R. 31.]
March 7, 2018,  Ms. Jones filed this Motion to Vacate
pursuant to 28 U.S.C. § 2255. [R. 37.] She asserts three
arguments claiming ineffective assistance of counsel.
Id. First, she complains that her attorney, Hon.
Liannie Parahoo, did not provide her with her United States
Sentencing Guidelines calculation prior to Ms. Jones entering
a guilty plea. Id. at 4. Next, Ms. Jones claims that
Ms. Parahoo told her she would only receive five to seven
years in prison when, in reality, Ms. Jones faced a mandatory
minimum of ten years. Id. at 5. Finally, Ms. Jones
complains that Ms. Parahoo did not allow her to revoke her
plea agreement when Ms. Jones realized she faced ten years in
prison. Id. at 6.
Wier prepared a Recommended Disposition rejecting each of Ms.
Jones's claims. [R. 49.] For claims of ineffective
assistance of counsel, Ms. Jones must prove by deficient
performance and prejudice. Strickland v. Washington,
466 U.S. 668, 687 (1984). Deficient performance is shown by
demonstrating “counsel made errors so serious that
counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.”
Id. To demonstrate prejudice, Ms. Jones must prove
“counsel's errors were so serious as to deprive the
defendant of a fair trial.” Id.
her first complaint, that Ms. Parahoo did not provide her
with the Guideline range prior to her plea agreement, Judge
Wier found no ineffective assistance of counsel. [R. 49 at 4-
6.] However, a defendant's Guideline range is not
calculated until after the defendant enters a guilty plea or
is convicted at trial, and after the presentence report (PSR)
is prepared. No. counsel is ever able to provide a defendant
with a Guideline range prior to entering a guilty plea. The
Court explained this to Ms. Jones, and she swore under oath
that she understood. [R. 42 at 23- 25.] Accordingly, Judge
Wier rejected her claim and found this was not ineffective
Wier also rejected Ms. Jones's second complaint,
concerning the alleged statement by Ms. Parahoo “that
the plea agreement was for 10 years but she was 95% sure she
could talk it down to 5 to 7 years based on [Ms. Jones's]
age, health, and medical issues.” [R. 37 at 5.] Even
assuming that Ms. Jones's assertion is true, this Court
advised Ms. Jones that she faced at least ten years, and that
the Court had no discretion to vary below that minimum. [R.
42 at 22.] Ms. Jones stated, under oath, that she understood
this and had no questions concerning the penalties she faced.
Id. at 23. Such colloquy at rearraignment cures any
misunderstanding Ms. Jones may have had concerning the
consequences of her plea agreement. United States v.
Pola, 703 Fed.Appx. 414, 423 (6th Cir. 2017).
Accordingly, Judge Wier found Ms. Jones's second claim to
also be without merit.
Ms. Jones claims that Ms. Parahoo did not allow her to
withdraw her guilty plea when she “realized at
sentencing” that she would receive the mandatory
minimum of 120 months imprisonment. [R. 37 at 6.] However, as
Judge Wier explains, this Court explained to Ms. Jones at
rearraignment that she was subject to the mandatory
minimum, and that this Court could not give her a sentence
less than ten years. [R. 42 at 23-25.] Under oath, Ms. Jones
agreed that she understood this. Id. at 25. Though
she may have hoped this Court would deviate below the
mandatory minimum, she acknowledged understanding that this
Court had no discretion to sentence her to less time.
Additionally, this Court explained to Ms. Jones that she
would not be able to withdraw her plea if the sentence was
not what she had expected. Id. at 25-26. Again, Ms.
Jones swore understanding to this. Id. As to her
third and final argument, Judge Wier found no basis for
§ 2255 relief. [R. 49 at 12.]
addition to recommending this Court dismiss Ms. Jones's
claims, Judge Wier also recommended this Court deny her a
Certificate of Appealability. When a petitioner makes a
“substantial showing of the denial of a constitutional
right, ” the Court may issue a Certificate of
Appealability. 28 U.S.C. § 2253(c)(2). Such a
“substantial showing” would require Ms. Jones
demonstrate that “reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). Judge Wier determined Ms. Jones has not
made such a substantial showing for any of her alleged
slights, and thus recommended denial of a Certificate of
Appealability. [R. 49 at 14.]
Wier's Report and Recommendation advised the parties that
any objections to the Recommendation must be filed within
fourteen (14) days of service or waive the right to further
appeal. [R. 49 at 14.] As of this date, neither party has
filed any objections nor sought an extension of time to do
so. Generally, this Court must make a de novo
determination of those portions of a recommended disposition
to which objections are made. 28 U.S.C. § 636(b)(1)(c).
When no objections are made, however, this Court is not
required to “review . . . a magistrate's factual or
legal conclusions, under a de novo or any other standard . .
. .” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Parties who fail to object to a Magistrate'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
it agrees with the Magistrate Judge's Recommended
Disposition. Furthermore, the Court declines to issue a
certificate of appealability. The Court determines that
reasonable jurists would not find the denial of Rain's
§ 2255 motion debatable. See Slack v. McDaniel,
529 U.S. 473, 484 (2000).
and the Court being sufficiently advised, it is hereby
Magistrate's Recommended Disposition [R.
49] as to Debbie Jones is ADOPTED
as and for the Opinion of the Court;
Jones's Motion to Vacate pursuant to 28 U.S.C. §