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 Magistrate Judge Edward B. Atkins. [R. 843.] The
Defendant, Mike Sturgill, has filed a pro se motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. [R. 813.] Consistent with local practice,
Judge Atkins reviewed the motion and ultimately recommends
that the Court deny the Defendant's § 2255 motion in
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
Sturgill filed timely objections to the Recommendation. [R.
846.] The Court acknowledges its duty to review his filings
under a more lenient standard than the one applied to
attorneys because Mr. Sturgill 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. Sturgill's objections will be
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
into this Order.
April of 2015, Mr. Sturgill and his co-defendants were
indicted for conspiracy to distribute oxycodone. [R. 1.] In
response to concerns about Mr. Sturgill's competency, the
Court ordered a psychological and/or psychiatric evaluation
at FMC Lexington. [R. 347.] Magistrate Judge Hanly A. Ingram
held a competency hearing and recommended the Court find him
competent to face further proceedings, including trial. [R.
463.] This Court adopted the Recommendation over Mr.
Sturgill's objections on July 13, 2016. [R. 474.]
six days later, Mr. Sturgill filed a motion for
rearraignment. [R. 481.] He entered a guilty plea to the
conspiracy charge before Judge Ingram on July 22, 2016, where
he waived his right to appeal the conviction but preserved
his right to appeal his sentence. [R. 500.] At sentencing, he
moved for a downward departure for diminished capacity under
U.S.S.G. § 5K2.13. [R. 633; R. 634.] The Court permitted
parties to brief the issue. [R. 681.] Ultimately, District
Judge Amul Thapar overruled the objections and sentenced Mr.
Sturgill to 120 months imprisonment. [R. 710; R. 713; R.
715.] He did not appeal. Instead, Mr. Sturgill filed a §
2255 petition on January 22, 2018. [R. 813.]
§ 2255 motion, Mr. Sturgill alleges ineffective
assistance of counsel because his attorney “failed to
consult with him regarding whether he wished to appeal the
[competency] ruling.” [R. 813-1 at 2.] Mr. Sturgill
claims that he would have instructed his attorney to appeal
the competency decision had he been aware “the
evaluation was not marked by the same thoroughness the
examiner utilized in another case and the decision itself
seemingly conflicted with other district court cases.”
Id. 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). When
an ineffective assistance of counsel claim involves
counsel's failure to appeal a decision, the Court must
determine if the defendant gave express instructions to
counsel to appeal. Johnson v. United States, 364
Fed.Appx. 972, 975-76 (6th Cir. 2010) (citing the test from
Roe v. Flores-Ortega, 528 U.S. 470 (2000)). If no
express instructions were given, the Court must decide if the
attorney consulted with the defendant regarding an appeal.
Id. at 976. If there was no consultation, the Court
must discern whether the failure to consult with the
defendant was objectively unreasonable. Id. Judge
Atkins thoughtfully considered Mr. Sturgill's claims and
determined, under Strickland, he is not entitled to
Atkins found, based on the colloquy at rearraignment and
subsequently filed affidavits, that Mr. Sturgill's
counsel discussed whether he wanted to appeal the
determination. [R. 843 at 10.] Thereafter, Judge Atkins
determined the consultation itself was sufficient.
Id. at 15. The Court agrees with Judge Atkins's
conclusions and now turns to Mr. Sturgill's specific
objections to his Recommendation.
Mr. Sturgill disagrees with Judge Atkins's evaluation of
a “rational defendant.” [R. 846 at 4.] Mr.
Sturgill states, “Rather, whether a rational defendant
would want to appeal an issue is dependent upon whether the
defendant feels that given the circumstances, a different
court could reach a different decision based on the
non-frivolous grounds presented.” Id. Judge
Atkins relied on Shelton v. United States and the
cases cited therein to determining whether counsel
demonstrated deficient performance: whether a rational
defendant would want to appeal his conviction or sentence.
[R. 843 at 12.]
“rational defendant” standard is objective, not
based on whether Mr. Sturgill himself would want to appeal a
decision. Further, the standard is based on several objective
factors, not “whether the defendant feels that given
the circumstances, a different court could reach a different
decision based on the non-frivolous grounds presented.”
Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000).
Judge Atkins based his determination on the factors of
Flores-Ortega (i.e. whether the defendant entered a
guilty plea or went to trial, whether defendant received the
sentence bargained for in the plea agreement, whether
defendant waived all or some of his appeal rights in the plea
agreement), and ...