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United States v. Holloway

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

December 10, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ERNEST HOLLOWAY, 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 United States Magistrate Judge Hanly A. Ingram. [R. 230.] The Defendant, Ernest Holloway, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [R. 215.] Consistent with local practice, Judge Ingram 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. Holloway filed timely objections.[1] However, Mr. Holloway's only objection seems to be the denial of a certificate of appealability as to each of his issues. [R. 231.] This objection is sufficiently definite to trigger the Court's obligation to conduct a de novo review.[2] See 28 U.S.C. § 636(b)(1)(c). On the same day, Mr. Holloway submitted a Motion to Amend, where he requests permission to add an additional claim for ineffective assistance of counsel based on his counsel's failure to request a reduction for his minor role in the conspiracy.

         I

         Judge Ingram'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 Ingram's discussion of the Record in this Order.

         On August 27, 2015, Mr. Holloway was indicted for conspiracy to distribute heroin. [R. 47.] He ultimately entered a guilty plea, without a plea agreement, to this charge on April 19, 2016. [R. 161; R. 162.] He was sentenced by former United States District Judge Amul Thapar on September 6, 2016, to 192 months imprisonment. [R. 198; R. 201.] Mr. Holloway timely appealed his sentence, and the Sixth Circuit Affirmed. [R. 202; R. 212.] Hon. Christy Love represented Mr. Holloway by CJA appointment before both the District Court and the Circuit Court. [R. 86; R. 206.]

         II

         A

         In his § 2255 Petition, Mr. Holloway asserted four arguments: (1) ineffective assistance of counsel for failure to object to the use of prior convictions for the purpose of the career offender enhancement; (2) ineffective assistance of counsel for failure to object to the use of “impermissible arrest affidavits;” (3) ineffective assistance of counsel for failure to assert a due process challenge to the statute defining his offense of conviction; and (4) a constitutional challenge to the statute defining his offense of conviction, claiming 21 U.S.C. § 841 violates the due process clause of the Fifth and Fourteenth Amendments. [R. 215-1.] Judge Ingram thoughtfully considered each of these claims and determined that Mr. Holloway is not entitled to relief. [R. 230.] Specifically, Judge Ingram determined, under Sixth Circuit precedent, 21 U.S.C. § 841 does not violate due process. Id. at 8-11 (citing United States v. Dado, 759 F.3d 550 (6th Cir. 2014)). Accordingly, Judge Ingram found that, even if Ms. Love had asserted this due process challenge, the challenge would not have succeeded, and therefore, even if he could demonstrate Ms. Love's performance was deficient, he could not establish that such performance was prejudicial. Id.; see Strickland v. Washington, 466 U.S. 668, 687 (1984). As to his second claim concerning “impermissible arrest affidavits, ” Judge Ingram found that the Record contradicted Mr. Holloway's assertions, as the Court and Government relied on an indictment, not “arrest affidavits.” Id. at 8. Finally, Judge Ingram determined his prior Kentucky convictions to be qualifying offenses under the career offender enhancement, and therefore, Mr. Holloway was not prejudiced by Ms. Love's failure to object to the use of those convictions. Id. at 4-7.]

         Judge Ingram then denied Mr. Holloway's request for an evidentiary hearing because his claims were not premised on issues of disputed fact, only legal arguments. Id. at 12. Thus, he found the Record conclusively showed Mr. Holloway was not entitled to relief. Id.; Arrendondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Additionally, Judge Ingram denied a Certificate of Appealability, finding Mr. Holloway's claims lacked legal merit, and thus, no reasonable jurist could find them debatable. Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000); Miller-El v. Cockrell, 537 U.S. 322, 335-58 (2003).

         Mr. Holloway only objects to Judge Ingram's denial of a Certificate of Appealability as to all issues, claiming reasonable jurists could debate these issues. [R. 231.] A petitioner does not need to prove that some jurists would grant his petition, but he must show that reasonable jurists would find the trial court's assessment of his constitutional claims to be wrong. Miller-el, 537 U.S. at 337-38. Here, Judge Ingram's denial of each of Mr. Holloway's claims was based on standing legal precedent. While dissenting jurists[3] to those precedential cases may be sympathetic to his claims, no reasonable jurist would debate the trial court's assessment of those claims. Judge Ingram's decision did not result from a new analysis of federal law, but rather from determinations already made by the Sixth Circuit, suggesting the issues do not “deserve encouragement to proceed further.” Slack, 529 U.S. at 484 (quoting Barefoot v. Estell, 463 U.S. 880, 894 (1983)). Mr. Holloway, therefore, has not made the required “substantial showing of the denial of a constitutional right” necessary to issue a Certificate of Appealability, and his objections are overruled.

         B

         Mr. Holloway also requests permission to amend his original § 2255 petition. [R. 232.] He wishes to add an additional claim for ineffective assistance of counsel based on Ms. Love's failure to request a reduction pursuant to U.S.S.G. § 3B1.2(b).[4] Federal Rule of Civil Procedure 15(1)(1) permits a party to amend its pleadings as a matter of course within either twenty-one days of service or, if a responsive pleading is required, within twenty-one days of service of a responsive pleading. Mr. Holloway filed his motion to amend eight months after his initial § 2255 petition, well after this twenty-one-day window. [Compare R. 215 with R. 232.] Therefore, Mr. Holloway may only amend his petition with ...


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