United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
pro se, Defendant Thelmo Leon Wright filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255. (Doc. # 78). Pursuant to the Court's
local practice, the Motion was referred to Magistrate Judge
Candace J. Smith for preparation of a Report and
Recommendation (“R&R”). Accordingly, this
matter is before the Court on Judge Smith's R&R,
wherein she recommends that the Court deny Wright's
Motion to Vacate. (Doc. # 89). Wright having filed timely
Objections to the R&R (Doc. # 90), the R&R is now
ripe for the Court's review. For the reasons that follow,
Wright's Objections are overruled and
the R&R is adopted as the opinion of the
FACTUAL AND PROCEDURAL BACKGROUND
Thelmo Leon Wright and two codefendants-Londell Davis, III,
and Anthony Patrick Lashley-were charged in a one-count
Indictment with participating in a conspiracy to present
materially altered Postal Service Money Orders (PMOs) with
the intent to defraud the United States Post Office, in
violation of 18 U.S.C. § 371. (Doc. # 3). Specifically,
the Indictment alleged that from approximately April 12,
2016, through September 6, 2016, Wright and his codefendants
agreed to work together to purchase multiple PMOs for
low-dollar amounts in New Jersey, alter them, and then
attempt to cash them for $1, 000.00 each at various U.S. Post
Offices in northern Kentucky. Id.
was charged with several overt acts in furtherance of the
conspiracy, including renting a white Hyundai Sonata in
Englewood, New Jersey, on August 29, 2016. Id. On
September 6, 2016, Wright and his codefendants were
apprehended in the white Sonata; when the defendants were
searched, police found a wealth of incriminating evidence in
the defendants' possession. Id. A fraudulent New
Jersey driver's license in the name of M.G., multiple
credit cards in the names of A.C., M.G., and A.W., and $4,
601.24 in cash, among other things, were found on
Wright's person. Id. Similarly, six fraudulent,
out-of-state driver's licenses, an American Express
credit card in the name of M.G., and a Wells Fargo MasterCard
in the name of J.W., among other things, were found on the
person of Wright's codefendant, Londell Davis.
February 2, 2017, Wright pleaded guilty to the single-count
Indictment. (Docs. # 39 and 88-1). During the sentencing
phase of the proceedings, Wright contested the application of
an enhancement to his offense level for having a management
role. (Docs. # 50, 56, and 75). Specifically, Wright objected
to use of a statement by Nathaniel Taylor, an informant who
was interviewed by Postal Inspectors on May 12, 2016, to
support the role enhancement sought in the Presentence
Investigation Report; Wright claimed that the statement was
“hearsay regarding unindicted conduct.” (Doc. #
50 at 3).
the May 8, 2017 sentencing hearing before then-U.S. District
Judge Amul Thapar, defense counsel had an opportunity to
argue against application of the management-role enhancement
before the presiding district judge; however, defense counsel
acknowledged that Sixth Circuit case law was contrary to his
argument regarding his hearsay objection. (Doc. # 75 at 4-5).
Consistent with Sixth Circuit precedent, the Court held that
the informant's hearsay statement was admissible for
sentencing, as there was sufficient indicia of reliability,
and further, that there was sufficient other evidence of
Wright having a management role to enhance his offense level.
Id. at 5-12. During the hearing, the Government also
declined to move for the third point for acceptance of
responsibility under the sentencing guidelines. Id.
for the United States then voiced the Government's
objection to a two-level reduction for acceptance of
responsibility. Id. at 18. Noting the
Government's objection, the Court noted that
“[y]our record is preserved.” Id.
Turning to defense counsel, the Court stated:
The Court: You agree, Mr. Smith, that her record is preserved
on that, just like yours is on the leadership role, correct?
Mr. Smith: Agreed.
The Court: Okay, good. You all can fight it out in the Sixth
Circuit. What's a good sentence?
Id. Noting that counsel for each side had preserved
the parties' guidelines objections, the Court then went
on to sentence Wright to a term of thirty-eight months of
imprisonment- below the forty-six months sought by the United
States. Id. at 28. Wright was then provided a
written notice of his right to appeal and instructed to go
over it with his attorney and let the Court know if he had
any questions. Id. at 32. The written notice, signed
by Wright, advised that a “Notice of Appeal must be
filed in this court within fourteen (14) days from the date
of entry of the Judgment.” (Doc. # 60). Judgment was
entered on May 11, 2017, and Wright did not file a timely
appeal. (Doc. # 62).
filed the subject Motion to Vacate under 28 U.S.C. §
2255 on October 23, 2017, alleging ineffective assistance of
counsel for failure to file a notice of appeal “on the
two preserved sentencing issues.” (Doc. # 80 at 4).
Specifically, Wright argued that (1) he should not have been
subjected to the management-role enhancement when the
Government relied solely on hearsay statements from an
informant; (2) he should have received an additional credit
for acceptance of responsibility; and (3) counsel was
ineffective for his failure to interview Wright's two
codefendants, “which would have established that [he]
was not the ‘leader' of this conspiracy and not
subject to the ‘leadership' enhancement.”
Id. at 4-5. The R&R rejected each of
Wright's arguments. (Doc. # 89).
Court reviews de novo those portions of the R&R
to which specific objections have been filed. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no
objections are made, or the objections are vague or
conclusory, the Court is not required to review under any
standard. Thomas v. Arn, 474 U.S. 140, 150 (1985);
United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017
WL 3431834, at *1 (E.D. Ky. Aug. 8, 2017). Allegations in
pro se habeas complaints are held to a less
stringent standard and are construed liberally, however