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. 1078.] The Defendant, Michelle Manning, has filed a
pro se motion to vacate, set aside, or correct her
sentence pursuant to 28 U.S.C. § 2255. [R. 1067.]
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
Manning did not file timely objections. Instead, Ms. Manning
filed a Motion for Declaratory Judgment nearly a month after
Judge Smith filed the Report and Recommendation. [R. 1091.]
Because Ms. Manning requests a declaration that she should
not have been classified as a career offender at sentencing,
the Court construes this filing as objections to the
Magistrate Judge's Recommendation. These 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 less stringent standard applied to
pro se litigants does not apply to readily
comprehendible deadlines, such as the deadline to file
objections to the Recommendation, and thus, Ms. Manning's
filing is untimely. Jourdan v. Jabe, 951 F.2d 108,
110 (6th Cir. 1991). Even so, the Court considers the merits
of Ms. Manning's objections and overrules them.
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.
23, 2013, Ms. Manning was indicted for conspiracy to
manufacture methamphetamine. [R. 2.] This indictment was
superseded [R. 142] and Ms. Manning ultimately entered a
guilty plea to the charge on August 28, 2014 [R. 793.] She
was sentenced by this Court on February 5, 2015, to 108
months of imprisonment, which she did not appeal. [R. 918.]
§ 2255 Motion, Ms. Manning asserted four arguments: (1)
she should not have been classified as a career offender
under Johnson; (2) she should have been given a
two-level reduction for her minor role in the crime pursuant
to U.S.S.G. § 3B1.2(b); (3) she was entitled to an
additional 2-level reduction for acceptance of
responsibility; and (4) the Court should consider her
post-conviction conduct as well as policies of the Attorney
General when determining a new sentence. [R. 1067.] Judge
Smith thoughtfully considered each of these claims and
determined that Ms. Manning is not entitled to relief. [R.
1078.] Specifically, Judge Smith determined that her
non-Johnson arguments were waived in her plea
agreement and that she had procedurally defaulted these
claims by failing to raise them on direct appeal.
Id. at 9-11. As to her Johnson claim, Judge
Smith found Johnson did not apply to Ms. Manning
because she was not sentenced under the residual clause of
the U.S.S.G. § 4B1.1(a).
Manning only objects to Judge Smith's finding that her
career offender classification was appropriate. [R. 1091.]
Ms. Manning claims that the status was based on a prior
offense from July 2006 where she served no time of
to the Sentencing Guidelines, a defendant is considered a
career offender for sentencing purposes if “(1) the
defendant was at least eighteen years old at the time the
defendant committed the instant offenses of conviction; (2)
the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). Ms. Manning was
born on October 13, 1979, making her at least eighteen years
old at the time of the offense. [PSR at 3.] The instant
offense was a conspiracy to manufacture methamphetamine, a
controlled substance offense.
third criteria, the PSR identified two prior felony
convictions for controlled substance offenses: in 2006, she
was sentenced to two years imprisonment for possession of a
methamphetamine precursor (Whitley County Circuit Court, No.
05-CR-51), and in 2011, she was sentenced to six years
imprisonment for possession of marijuana with intent to
distribute and possession of methamphetamine (Banks County
Superior Court, No. 07-CR-136). [PSR at ¶¶ 66-67.]
Both of these are felony convictions, and both are controlled
substance offenses. The sentence in Banks County was
suspended, and she received six years of probation instead. A
prior felony conviction means any “prior adult federal
or state conviction for an offense punishable by death or
imprisonment for a term exceeding one year, regardless of
whether such offense is specifically designated as a felony
and regardless of the actual sentence imposed.”
U.S.S.G. § 4B1.2, Application Note 1. Thus, because Ms.
Manning was sentenced to six years, it is irrelevant whether
she actually served those six years. This conviction was
properly counted as a qualifying controlled substance offense
for her status as a career offender. Accordingly, Ms.
Manning's objections are overruled.
reviewing de novo the entire record, as well as the
relevant case law and statutory authority, the Court agrees
with Judge Smith's thorough analysis of Ms. Manning's
claims. The Court also denies a certificate of appealability
pursuant to 28 U.S.C. § 2253(c) as to each issue
asserted. Under Rule 11 of the Federal Rules Governing §
2255 Proceedings, the “district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant . . . .” Rules Governing
Section 2255 Proceedings, Rule 11. A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). As set forth by
the United States Supreme Court, this standard requires the
petitioner to “demonstrate that reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.” See
Slack v. McDaniel,529 U.S. 473, 484 (2000); see
also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
Under this ...