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United States v. May

United States District Court, E.D. Kentucky, Central Division, Pikeville.

January 18, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RUSSELL T. MAY, Defendant/Petitioner.

          REPORT & RECOMMENDATION

          MATTHEW A. STINNETT UNITED STATES MAGISTRATE JUDGE.

         This matter is before the undersigned on Petitioner Russell T. May's (“May”) Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255. May alleges violations of his right to counsel, equal protection rights and speedy trial rights as well as multiple claims of ineffective assistance of counsel. [DE 354]. The United States responded in opposition [DE 379], and May filed a reply [DE 392]. After reviewing the record in its entirety, the Court recommends May's motion be denied for the reasons stated below.

         I. RELEVANT FACTUAL BACKGROUND

         On December 1, 2015, May made an initial appearance and was arraigned in this Court on an indictment charging May and multiple other defendants with, among other things, trafficking in several controlled substances. [DE 1; 37]. May was specifically charged with one count of conspiracy to distribute cocaine, one count of distributing cocaine, three counts of possession with intent to distribute various controlled substances, and one count of possession of a firearm in furtherance of a drug trafficking crime. [DE 1]. On February 4, 2016, May pleaded guilty to conspiracy, trafficking in cocaine and the firearm charge as part of a plea agreement. [DE 169- 71]. In return, the United States agreed to dismiss the remaining charges against May. [Id.]. Following his sentencing, May appealed the decision. [DE 241]. The Sixth Circuit affirmed the District Court's judgment on August 11, 2017. [DE 324].

         May then timely filed the present Motion to Vacate, Set Aside, or Correct a Sentence on August 14, 2018. [DE 354]. In total, May has alleged forty-one grounds in support of his motion. While the bulk of May's arguments center upon alleged violations of his Sixth Amendment rights under the theory of ineffective assistance of counsel, he also claims violations of his right to counsel, equal protection and speedy trial rights. The Court will address the ineffective assistance of counsel grounds before turning to the remaining constitutional arguments.

         II. ANALYSIS

         A. Ineffective Assistance of Counsel

         To succeed on a § 2255 motion, petitioner “must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). In his motion, May has raised numerous grounds to support his claim for ineffective assistance of counsel.[1] Despite the sheer volume, May's arguments fail because they are only supported by conclusory statements, refuted by the record in the case, or misconstrue the relevant legal standard.

         1. Grounds Only Supported by Conclusory Statements

         Initially, May offers very few, if any, facts to support his arguments that his trial counsel was ineffective. Conclusory statements are insufficient to warrant § 2255 relief. See Lovejoy v. United States, No. 95-3968, 1996 WL 331050, at *3 (6th Cir. June 13, 1996) (acknowledging that conclusory statements are insufficient to warrant § 2255 relief). Thus, May's underdeveloped claims should be dismissed. See Johnson v. United States, 457 Fed. App'x 462, 466-67 (6th Cir. 2012); United States v. Domenech, No. 1:06-CR-245-2, 2013 WL 3834366, at *2 (W.D. Mich. July 24, 2013).

         Namely, May claims counsel asserted “incriminating statements” that were “critically damaging, ” but May neither specifies the statements nor explains the resulting critical damage caused by those statements. [DE 354 at Page ID # 1443 (ground 13); 1409-10 (grounds 32-33)]. May repeatedly contends that his counsel failed to impeach certain witnesses properly, but he fails to provide which statements were deserving of impeachment or even, at times, which witness's testimony he is referencing. [Id. at Page ID # 1403 (ground 26); Page ID # 1405-06 (grounds 28-29)]. The only support May offers are vague statements, such as saying testimony was “inaccurate or could be impeached” or that counsel failed to “preserve []several objections and [] error[s].” [Id. at Page ID #1403-04 (grounds 26-27)].

         Similarly, May does not explain the relevance or importance of the grand jury records he complains his counsel failed to inspect. [Id. at Page ID # 1417-18 (grounds 40-41)]. May simply contends his counsel should have obtained “grand jury minutes, grand jury witness lists, names of person impaneled […].” [Id.].

         May also makes a vague reference to the failure of his counsel to document an alleged verbal agreement concerning his pretrial release. [Id. at Page ID # 1431 (ground 1) (“I … never received pretrial release - “bond” or “bail” as guaranteed to me”); Page ID # 1397 (ground 19) (“[…] failure to put a verbal ‘agreement […] in writing' or on the record in the presence of the Judge constitutes ineffective assistance of counsel[.]”]. Once again, May does not provide any substantiation to the existence of a verbal agreement supporting pretrial release or provide a single fact in the record supporting this notion. Rather, the Court is left guessing at the basis of May's alleged claim.

         May often discusses that his counsel failed to “develop a working relationship” with him and did not adequately prepare for May's case. [Id. at Page ID # 1399-1402 (grounds 21-23)]. He states that his counsel failed to confer with him, to see discovery, to properly investigate the crime, or interview witnesses. [Id.]. In conjunction with this claim, May argues that his counsel failed to “familiarize him/herself with the facts and law relevant to the case, ” and that this made his plea agreement involuntary. [Id. at Page ID # 1396 (ground 18).] May also claims he requested that “discovery be provided, ” but never received it. [Id. at Page ID # 1434 (ground 4)]. Again, May provides no specificity or any references to the record as to what discovery he wanted counsel to conduct, what facts counsel did or did not familiarize themselves with, what relevant legal standards counsel failed to appreciate or how that would have assisted his case. Without more, May's numerous grounds remain legally insufficient. Short v. United States, 504 F.3d 63, 65 (6th Cir. 1974) (affirming denial of a § 2255 motion because petitioner's claims “were stated in the form of conclusions without any allegations of facts in support thereof, as well as being unsupported by proof or reference to such proof.”). Accordingly, the Court recommends denial of the motion on these grounds.

         2. Grounds Refuted by the Record

         Some of May's other grounds for relief are directly refuted by the record. May claims that counsel was “asked to file an appeal and to make bond happen, ” but failed to do so timely. [DE 354 at Page ID # 1433 (ground 3); 1436 (ground 6); 1445 (ground 15)]. Contrary to May's argument, however, his counsel timely filed an appeal at May's request [DE 242 (Notice of Appeal)] and timely objected to his pretrial detention, an objection that the Court overruled [DE 97 (sealed Objection to Order of Detention); DE 117].

         May also claims that his attorney failed to object to a two-point enhancement in the calculation of his sentence based on possession of a firearm [DE 354 at ID # 1398 (ground 20)], but the record establishes that May did not receive a two-point enhancement. [DE 245 at ID # 679-80 (offense calculations not including a two-point enhancement for firearms)].

         May makes numerous complaints that his counsel failed to send him certain requested documents. Specifically, May argues that his counsel failed to send him his presentence report. [DE 354 at Page ID # 1439 (ground 9)]. However, according to correspondence submitted by his counsel, Pamela Perlman (“Perlman”), May was sent the requested document on multiple occasions. [DE 379, Perlman Declaration, Page ID # 1650 (allegation 9), 1654 (letter)]. May contends Perlman failed to provide him with certain transcripts when he requested [DE 354 at Page ID # 1442 (ground 12)], but Perlman had withdrawn as counsel by that date [DE 265] and the requested transcript was not filed until after her withdrawal [DE 277]. May cannot complain about something counsel omitted in doing when she was not even his counsel. Likewise, he complains his counsel did not provide him with certain documents from his appellate record. [DE 354 at Page ID # 1446 (ground 16)]. Yet, the Court, because May did not have appointed counsel at the time, addressed this request and ordered that the records be provided to May upon his payment for the copies. [DE 346]. As the record makes clear, May simply never paid.

         Moreover, May argues that the plea agreement he accepted was the result of coercion- that his counsel was willing to “accept whatever deal” the Government was willing to offer. [DE 354 at Page ID # 1437 (ground 7); Page ID # 1438 (ground 8); Page ID # 1395 (ground 17)]. The transcript of the rearraignment, however, tells a different tale:

THE COURT: Are you satisfied with the advice and representation that [your counsel has] given you to this point in the proceedings?
DEFENDANT MAY: To this point, yes, sir.
. . .
THE COURT: Do you need some additional time to look over these [plea agreement] documents, Mr. May? If you do, we can take a recess, and you can take really as much time as you need? Would you like some additional time, Ms. Perlman?
DEFENDANT MAY: I don't think that -
MS. PERLMAN: Your Honor, I was here and met with him for two hours last week, and we went through the ...

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