United States District Court, E.D. Kentucky, Central Division, Pikeville.
REPORT & RECOMMENDATION
MATTHEW A. STINNETT UNITED STATES MAGISTRATE JUDGE.
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.
RELEVANT FACTUAL BACKGROUND
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].
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
Ineffective Assistance of Counsel
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. 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.
Grounds Only Supported by Conclusory Statements
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).
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
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.].
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.
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.
Grounds Refuted by the Record
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].
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
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.
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 ...