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United States v. Sturgill

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

November 15, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MIKE STURGILL, 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. 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 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. 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 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 into this Order.

         In 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.]

         Only 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.]

         II

         In his § 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 relief.

         Judge 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.

         A

         First, 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.]

         The “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 ...


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