United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove, United States District Judge
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.
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
Holloway filed timely objections. 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. 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.
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.
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.]
§ 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.]
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).
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 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.
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). 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 ...