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United States v. Luke

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

November 7, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JERRY LUKE, Defendant/Petitioner.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Recommended Disposition filed by Magistrate Judge Edward B. Atkins. [R. 117.] The Defendant, Jerry Luke, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. [R. 114.] Consistent with local practice, Judge Atkins reviewed the motion and ultimately recommends that the Court deny Defendant Luke's motion in its entirety.

         Under 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 Cir. 1991).

         Mr. Luke filed objections on April 16, 2018, over three weeks after Judge Atkins's Recommended Disposition was filed and after the allowed fourteen days. [R. 118.] Even so, the Court has reviewed his objections and found them to be without merit. The Court acknowledges its duty to review Mr. Luke's filings under a more lenient standard than the one applied to attorneys because he is proceeding pro se. See Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985). Under this more lenient standard, some of Mr. Luke's 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. Luke's objections will be OVERRULED.

         I

         Judge Atkins'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 Atkins's discussion of the record in this Order.

         Defendant Jerry Luke was indicted on February 25, 2015, for possession of child pornography. [R. 1.] This indictment was superseded in August to add a charge for attempted production of child pornography. [R. 21.] On January 31, 2017, he entered into a binding plea agreement with the United States, whereby he agreed to enter a guilty plea to possession of child pornography, serve 150 months imprisonment, and waive his appeal rights in exchange for the United States dropping the attempted production charge. [R. 97.] Mr. Luke was sentenced on June 2, 2017, before this Court, to the agreed-upon 150 months incarceration. [R. 107; R. 108.]

         On March 1, 2018, Mr. Luke filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. [R. 114.] Mr. Luke claims his counsel failed to challenge the Court's jurisdiction and failed to investigate and introduce exculpatory evidence. Id. Judge Atkins considered both arguments and found them both to be claims of insufficient evidence cloaked as ineffective assistance of counsel claims. [R. 117 at 7-8.] Because Mr. Luke had waived all claims, except for ineffective assistance of counsel, in his plea agreement, Judge Atkins recommended denying both claims. Id. at 9-10.

         II

         A

         Mr. Luke objects to the Magistrate Judge's classification of his arguments, pointing to Messaro v. United States and Kimmelman v. Morrison to show that any claim which “denies a petitioner justice is preserved in a denial of effective assistance of counsel claim where counsel's ineffectiveness was the ‘cause' of the default.” [R. 118 at 2.] Neither case, however, stands for the proposition that a petitioner can make any collateral attack on his or her sentence merely by classifying it as an ineffective assistance of counsel claim. See Messaro v. United States, 538 U.S. 500 (2003); Kimmelman v. Morrison, 477 U.S. 365 (1986).

         Even assuming Mr. Luke can bring these claims as ineffective assistance of counsel challenges, both claims fail on the merits. A petitioner must demonstrate both deficient performance and prejudice to the petitioner to prevail on such a claim under § 2255. Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Mr. Luke claims his counsel failed to challenge the Court's jurisdiction because the child pornography located by authorities was not connected to the internet. [R. 114-1 at 2-3.] However, in his plea agreement, Mr. Luke admitted under oath that some of the pornography was produced outside of Kentucky and subsequently transferred into Kentucky using interstate commerce. [R. 97 at 2.] He cannot now claim that the materials were not within the jurisdiction of the Eastern District of Kentucky. Next, he claims his attorney failed to present exculpatory evidence. [R. 114-1 at 4-7.] Mr. Luke asserts that he wanted to go to trial where he could present evidence that he was unaware of his possession of child pornography. Id. at 5. Again, Mr. Luke admitted, under oath, to the knowing possession of pornography. [R. 95; R. 96; R. 97; R. 98.] He makes no attempt to establish that his plea agreement was not entered into knowingly, voluntarily, or intelligently, and thus, he cannot now contest his own assertion of the facts. See United States v. Adams, 598 Fed.Appx. 425, 428 (6th Cir. 2015). Furthermore, even if these claims are properly classified as challenges to the effectiveness of his counsel, and even if the performance of his counsel was deficient, Mr. Luke has not demonstrated that such deficiency was prejudicial to his case. See Strickland, 466 U.S. 687. This would require Mr. Luke to prove with “reasonable probability” that, but for the deficiency of his counsel, the outcome of his case would be different. Id. at 694. He has only provided the Court with speculation that his conviction and sentence might have been more favorable to him, but he has offered no “reasonable probability” that he would have been acquitted.

         B

         After filing his objections, Mr. Luke also filed a pro se “Motion to Take Judicial Notice.” [R. 126.] However, in this filing, Mr. Luke restates his objection that this Court has no jurisdiction over this matter, and he continues to argue that his counsel was ineffective by not contesting jurisdiction. Id. Thus, this motion ...


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