United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on the Recommended Disposition
filed by the United States Magistrate Judge Candace J. Smith.
[R. 125.] The Defendant, Johnny Brumley, has filed a pro
se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. [R. 93.] 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
Brumley filed timely objections to the Recommendation. [R.
127.] The Court acknowledges its duty to review Mr.
Brumley's filings under a more lenient standard than the
one applied to attorneys because Mr. Brumley is proceeding
pro se. See Franklin v. Rose, 765 F.2d 82,
84-85 (6th Cir. 1985). Under this more lenient construction,
the 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. Brumley'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.
August of 2014, Defendants Johnny Brumley and his son,
Jonathon D. Brumley, were indicted for conspiracy to
distribute oxycodone. [R. 1.] After a guilty plea, Johnny
Brumley was sentenced by this Court on July 2, 2015, to
sixty-six months of imprisonment, which he did not appeal.
[R. 86.] In his plea agreement, Mr. Brumley admitted that law
enforcement seized or purchased approximately 5, 250
milligrams of oxycodone, and that he was responsible for
distribution of oxycodone pills corresponding to a marijuana
equivalency of between 80 and 100 kilograms. [R. 80 at 2.]
Pursuant to the 2014 Guidelines Manual, under which Mr.
Brumley's offense level was calculated, one gram of
oxycodone is equivalent to 6, 700 grams of marijuana.
U.S.S.G. § 2D1.1, Application Note 8(D). This means,
pursuant to his plea agreement, he agreed to responsibility
for between 11, 940 milligrams and 14, 930 milligrams of
oxycodone. The plea agreement does not make any
statements regarding how many pills this would equate to, or
how much oxycodone was in each pill.
on an assumption that each pill held 30 milligrams of
oxycodone, this equates to roughly 398-498 pills. Based on
the alternative idea, proposed by Mr. Brumley, that each pill
contained 27 milligrams of oxycodone, this amount results in
roughly 442-553 pills. In his petition for relief, Mr.
Brumley states that he was responsible for “way less
than 5, 000 pills.” [R. 93-1 at 1.] The Government, in
its response, incorrectly stated that the marijuana
equivalency of 80-100 kilograms results in between 300 and
400 oxycodone pills. [R. 110 at 4.]
§ 2255 motion, Mr. Brumley asserted four claims based on
ineffective assistance of counsel. [R. 93; R. 93-1.] He
believes his trial attorneys were ineffective for several
reasons: (1) failure to negotiate a plea agreement that
accurately reflects his culpability; (2) advising him to
accept the plea agreement, even though the drug quantity was
ambiguous; (3) providing misleading advice during sentencing
and failure to object to the Presentence Report; and (4)
failure to seek a mitigating role reduction pursuant to
United States Sentencing Guidelines § 3B1.2. 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.
Brumley's claims and determined, under Strickland, Mr.
Brumley is not entitled to relief. The Court agrees with
Judge Smith's conclusions and now turns to Mr.
Brumley's specific objections to her Recommendation.
Brumley's primary objection is to Judge Smith's
rejection of his claims regarding the drug quantity. [R. 127
at 3-11.] He focuses on the Government's incorrect
assertion that a marijuana equivalency of 80-100 kilograms
results in 300-400 oxycodone pills, and he attempts to argue
that this proves his base offense level was too high. Mr.
Brumley emphasizes that he does “not know the actual
quantity of pills he was being held accountable for.”
Id. However, the number of pills is irrelevant in
this matter. At rearraignment, he agreed to be responsible
for a number of pills with a marijuana equivalency of between
80 and 100 kilograms. [R. 107 at 42- 43.] His base offense
level, therefore, was based on this amount. [PSR at ¶
Brumley insists now that he was only accountable for 300-400
pills with 27 milligrams of oxycodone in each pill. [R. 127
at 5.] However, the 300-400 pill count comes, not from the
record, but from the Government's response to Mr.
Brumley's petition. [R. 110 at 4.] Furthermore, the only
evidence he presents that the pills were 27 milligrams, not
30 milligrams, is his own declaration and “a medical
website.” [R. 113-1 at 2.] “Solemn declarations
in open court carry a strong presumption of verity. The
subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly
incredible.” Blackledge v. Allison, 431 ...