United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
James Shelton pleaded guilty to using a means and facility of
interstate commerce to knowingly persuade, induce, entice,
and coerce an individual under the age of 18 to engage in
sexual activity for which any person can be charged with a
criminal offense in violation of 18 U.S.C. § 2242(b).
[Record No. 31] He was sentenced to a 262-month term of
imprisonment, followed by a life term of supervision. [Record
No. 49] The United States Court of Appeals for the Sixth
Circuit affirmed the sentence. [Record No. 61] The matter is
now pending for consideration of Shelton's pro
se motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255 [Record No. 71]. Shelton's
motion will be denied and a Certificate of Appealability
shall not issue for the reasons outlined below.
§ 2255 motion was referred to a United States Magistrate
Judge for review and issuance of a report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B). After briefing by
the parties, United States Magistrate Judge Hanly A. Ingram
recommended that Shelton's § 2255 motion be denied.
[Record No. 85]
Court must make a de novo determination of those
portions of the Magistrate Judge's recommendations to
which specific objections are made. 28 U.S.C. §
636(b)(1)(C). However, “[w]here no objections are made,
or the objections are vague or conclusory, the Court is not
required to review under a de novo, or any other,
standard.” United States v. Hale, 2017 WL
6606861, at *1 (E.D. Ky. Dec. 26, 2017) (citations omitted).
Additionally, “[a]n objection that does nothing more
than state a disagreement with a magistrate's suggested
resolution, or simply summarizes what has been presented
before, is not an objection as that term is used in this
context.” United States v. Bowers, 2017 WL
6606860, at *1 (E.D. Ky. Dec. 26, 2017) (internal quotations
and citations omitted).
objections Shelton presents in the present case are difficult
to follow. However, it appears that he makes the same
arguments that the Magistrate Judge has already considered
and rejected in the Recommended Disposition. [Record No. 88]
Nevertheless, the Court has examined the record and, having
made a de novo determination, agrees with the
Magistrate Judge's analysis and recommendation.
raises five arguments in his § 2255 motion. Each of the
asserted grounds argues some form of ineffective assistance
of counsel. The Magistrate Judge thoroughly analyzed each
claim and explained why Shelton has failed to state a viable
argument under § 2255. Shelton must show two elements to
succeed on his ineffective assistance of counsel claims.
See Strickland v. Washington, 466 U.S. 668, 687
(1984). First, he must establish that counsel's
performance was deficient. Id. “This requires
showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment.” Id. Second,
Shelton must show that his counsel's deficient
performance prejudiced him. Id. Because Shelton
pleaded guilty, he “must show that there is a
reasonable probability that, but for counsel's errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).
initial matter, Shelton has not shown that his trial counsel
was ineffective for moving for a competency evaluation.
[Record No. 71] Shelton's trial counsel moved for a
competency evaluation after he had “met with the
Defendant, talked with the Defendant's mother, studied
the bond report, and been made aware of the Defendant's
long history of mental health issues dating back to his
early, teenage years.” [Record No. 13] This Court
agrees with the Tenth Circuit's analysis “that when
a lawyer has reason to believe that her client may not be
mentally competent to stand trial, she does not render
ineffective assistance of counsel by making her concerns
known to the court.” United States v.
Boigegrain, 155 F.3d 1181, 1187 (10th Cir. 1998)
(attorney was not ineffective for raising competency issue
against defendant's wishes). Because objective evidence
supports trial counsel's good faith doubts about
Shelton's competency, counsel did not render ineffective
assistance by presenting the mental-health concerns about
Shelton to the Court. See United States v. Jackson,
179 Fed.Appx. 921, 933 (6th Cir. 2006) (citing
Boigegrain, 155 F.3d at 1187).
Shelton does not establish that he was prejudiced by the
competency evaluation. The presentence investigation report
contained mental-health information similar to the competency
evaluation and Shelton has not established how the competency
evaluation affected his sentence. [Record Nos. 22, 52] The
presentence investigation report would have been prepared
even if no competency evaluation was conducted. Fed. R. Crim.
P. 32(c)(1)(a), (d)(2)(A). And the only reference to the
competency evaluation in the mental health section of the
presentence investigation report indicated that Shelton met
the criteria for competency and was not suffering from a
mental disease at the time of the offence. [Id.]
Otherwise, all the information provided in the mental health
section of the presentence investigation report was provided
by Shelton, his mother, or past mental healthcare providers.
also argues in his first ground for relief that his
Constitutional rights were violated because his trial counsel
provided ineffective assistance by stipulating to the
competency evaluation report. [Record No. 71] But Shelton did
not develop this argument and the Court will not do so for
him. Further, no Fifth Amendment rights against
self-incrimination are implicated when the
“psychiatrist's findings [have] been confined to
the limited, neutral purpose of determining the
defendant's competency to stand trial.” U.S. v.
Thompson, 462 Fed.Appx. 561, 564 (6th Cir. 2012) (citing
Estelle v. Smith, 451 U.S. 454 (1981)). Likewise,
Shelton has not demonstrated that the evaluation violated his
Sixth Amendment rights. “[T]he Sixth Amendment's
right-to-counsel protection in this context at most requires
that defense counsel be informed of the ‘nature and
scope' of the evaluation and put ‘on notice'
that he would have to anticipate the prosecution's use of
the mental exam if he raised a ‘mental status
defense.'” Thompson, 462 Fed.Appx. at 564
(citing Buchanan v. Kentucky, 483 U.S. 402, 424-25
(1987)). Because Shelton did not establish counsel was
deficient by ordering the competency evaluation, he was not
prejudiced by the competency evaluation, and he did not show
a violation of his constitutional rights, he has not
established ineffective assistance of counsel on his first
ground for relief.
also contends ineffective assistance of his trial counsel in
his second ground for relief due to counsel's failure to
object to the denial of a downward variance and the
subsequent sentence imposed at the top of the Guidelines
range. [Record No. 71] He further claims that this failure
meant the issue was not properly preserved, precluding him
from raising the issue on direct appeal, “in violation,
essentially of [his] Right to Appeal.” [Id.;
Record No. 71-1] But trial counsel is not required to again
raise an issue that had been submitted previously to a
sentencing judge. Such objections previously raised are not
forfeited for the purposes of appeal. See United States
v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). Thus,
Shelton's trial counsel was not required to object to the
denial of the request for a downward variance after the
sentence was imposed because the defendant's attorney had
already presented the argument for consideration. [Record No.
58, p. 36]
even if Shelton's trial counsel was deficient for not
objecting to the sentence, Shelton has not shown he was
prejudiced by that error. Specifically, he has not provided
any persuasive arguments that if he was able to argue the
issue on appeal, the Sixth Circuit would have found his
sentence procedurally or substantively unreasonable. Shelton
has not shown that his Guidelines range was incorrectly
calculated, that the undersigned failed to consider the
relevant statutory factors, that his sentence was based on
clearly erroneous facts, or that the undersigned failed to
adequately explain the reasons for the sentence imposed.
Therefore, it is unlikely that the Sixth Circuit would have
found his sentence procedurally unreasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007). Likewise, the
contention that Shelton's sentence was substantively
unreasonable would have likely not been successful on appeal
because the appellate court is “entitled to afford a
sentence within the advisory Guidelines range a rebuttable
presumption of reasonableness[.]” United States v.
Cunningham, 669 F.3d 723, 733 (6th Cir. 2012).
third claim of ineffective assistance of trial counsel is
that counsel's alleged errors during pretrial proceedings
rendered his guilty plea invalid. [Record No. 71] He
specifically argues that his attorney “neglected to
inform [him] of the realistic possibility of indefinite civil
commitment upon release as a collateral consequence of the
particular crime pled to, ” and that his trial counsel
misadvised him about various aspects of his decision to plead
guilty. [Id.] The Court will assume that trial
counsel should have but failed to inform him about the
collateral consequences of pleading guilty to a sex offense.
See United States v. Francis, No. 5:04-CR-74-KSF
& No. 5:10-CV-7114-KSF, 2010 WL 6428639, at *9 n. 9 (E.D.
Ky. Dec. 30, 2010). However, Shelton does not explain in his
motion how he was prejudiced by this failure. He has not told
the court how knowledge about the potential civil commitment
would have impacted his decision to plead guilty. Therefore,
he has expressly ...