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United States v. Brumley

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

November 15, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JOHNNY BRUMLEY, Defendant/Petitioner.


          Gregory F. Van Tatenhove United States District Judge

         This 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.

         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. Brumley filed timely[1] 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.


         Judge 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.

         In 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.[2] The plea agreement does not make any statements regarding how many pills this would equate to, or how much oxycodone was in each pill.

         Based 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.]


         In his § 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.


         Mr. 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 ¶ 12.]

         Mr. 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 ...

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