United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Recommended Disposition
filed by United States Magistrate Judge Candace J. Smith. [R.
326.] The Defendant, Michael D. Leman, through counsel, has
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. [R. 300.] Consistent with
local practice, Judge Smith reviewed the motion and
ultimately recommends that the Court deny the Defendant's
§ 2255 motion in its entirety.
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Recommended Disposition or else waive his rights to appeal.
In order to receive de novo review by this Court,
any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). A specific objection must “explain and cite
specific portions of the report which [defendant] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981,
994 (6th Cir. 2007) (internal quotations and citations
omitted). A general objection that fails to identify specific
factual or legal issues from the recommendation, however, is
not permitted, since it duplicates the Magistrate's
efforts and wastes judicial economy. Howard v. Sec'y
of Health & Human Servs., 932 F.2d 505, 509 (6th
his counsel, Defendant Leman filed timely objections to Judge
Smith's Recommendation. [R. 333; R. 334.] Some of these
objections are sufficiently definite to trigger the
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law
and statutory authority, as well as applicable procedural
rules. For the following reasons, Mr. Leman's objections
will be OVERRULED.
Smith's Recommended Disposition accurately sets forth the
factual and procedural background of the case. The Court
mentions only key facts to frame its discussion and analysis
and incorporates Judge Smith's discussion of the record
into this Order.
April 14, 2010, Mr. Leman was indicted for conspiracy to
distribute oxycodone and methadone. [R. 1.] On September 1,
2011, a federal grand jury returned a superseding indictment,
charging Mr. Leman, Urgent Care of Philadelphia, and Urgent
Care of Cincinnati with conspiracy to distribute oxycodone
and methadone, in violation of 21 U.S.C. §§
841(a)(1) and 846, and conspiracy to commit money laundering,
in violation of 18 U.S.C. § 1956(h). [R. 85.] The
indictment was again superseded [R. 123], and the defendants
each pleaded not guilty [R. 128; R. 129; R. 130]. The case
proceeded to trial, where the jury found all defendants
guilty of all counts. [R. 167.] Mr. Leman was sentenced by
this Court to a total of 180 months of imprisonment. [R.
223.] He then appealed his conviction and restitution, which
the Sixth Circuit ultimately upheld. [R. 293.]
§ 2255 Motion, Mr. Leman asserted the four claims based
on ineffective assistance of counsel. [R. 300; R. 324 at 1.]
He believes his trial attorneys were ineffective for several
reasons: (1) failure to inform him that he could be convicted
on the basis of being either “knowingly
indifferent” or “deliberately ignorant” of
the activities at the clinics; (2) failure to review
patients' medical records prior to trial; (3) failure to
recall employee Tonia Snook after discovering her forgery;
and (4) failure to advise Mr. Leman of the appropriate
sentencing guidelines. To prevail on a claim of ineffective
assistance of counsel, a defendant must prove both deficient
performance and prejudice to assert successfully an
ineffective assistance of counsel claim. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Pough v.
United States, 442, F.3d 959, 964 (6th Cir. 2006). Judge
Smith thoughtfully considered each of Mr. Leman's claims
and determined, under Strickland, Mr. Leman is not
entitled to relief. The Court agrees with Judge Smith's
conclusions and now turns to Mr. Leman's specific
objections to her Recommendation.
Mr. Leman objects to Judge Smith's determination that he
is not entitled to an evidentiary hearing. [R. 333 at 1.] Mr.
Leman believes that he is entitled to an evidentiary hearing
as it relates to any prejudice caused by the performance of
his trial counsel in relation to any plea deal offered by the
Government. Id. at 2. However, the record shows that
he rejected the offer by the Government against the
advice of counsel. [R. 326 at 14.] Though Mr. Leman now
claims that he would have been open to a plea agreement, the
record shows that he had multiple opportunities to accept an
agreement from the Government, but he refused all of them.
Because the record conclusively demonstrates Mr. Leman is not
entitled to relief, no evidentiary hearing is necessary.
Amr v. United States, 280 Fed.Appx. 480, 485 (6th
Cir. 2008). An evidentiary hearing is not required “if
the petitioner's allegations cannot be accepted as true
because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of
fact.” Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999). Here, even after Mr. Leman became
aware of the “deliberate ignorance” theory and
after he was advised to take a plea deal from the Government,
Mr. Leman rejected any such deal. [R. 326 at 14.] Thus, the
record clearly contradicts Mr. Leman's statements that he
was prejudiced by the assistance of his defense counsel. His
objection as to the evidentiary hearing is overruled.
Mr. Leman contends Judge Smith's finding that his claim
of ineffective assistance, as it relates to his Sentencing
Guidelines, was waived. [R. 333 at 4.] He points to the
original § 2255 motion, where he explicitly states that
counsel's failure to advise on the implications of the
Guidelines. [R. 300 at 8.] Mr. Leman contends that his
inclusion of “three ways” was merely a
typographical error, not a waiving of the argument. [R. 333
at 4.] Though it might be a typographical error, Mr. Leman
never includes analysis on this claim in his Memorandum in
Support. [See R. 300-1.] He includes only the
conclusory statement, “Counsel's failure to advise
at any time prior to conviction of the application and
implications of U.S. Sentencing Guidelines to my case and
that, among other considerations, the Court could accumulate
the total quantity of drugs prescribed by others (the
doctors) and base a lengthy sentence on that basis, ”
to assert a claim of ineffective assistance. [R. 300 at 8.]
Mr. Leman never even explains how he believes this alleged
ineffective assistance was prejudicial to him. Arguments not
fully briefed are considered in this Court to be abandoned.
United States v. Hough, 276 F.3d 884, 891 (6th Cir.
2002); Bickle v. Korean Air Lines Co., Ltd., 96 F.3d
151, 154 (6th Cir. 1996).
so, Judge Smith considered this claim and dismissed it on the
merits, finding no reasonable probability he would have
accepted the Government's plea offer, had he been fully
informed of the Guidelines. [R. 326 at 17-20.] Mr. Leman did
not include a specific objection, or even reference, to this
determination, merely reiterating his claim of ineffective
assistance. [R. 333 at 4-5.] Accordingly, any objections to
Judge Smith's determination that this does not amount to
ineffective assistance of ...