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United States v. May

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

February 20, 2019

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

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves United States District Judge.

         Defendant/Movant Russell May knowingly and voluntarily pleaded guilty to conspiring to distribute 500 grams or more of cocaine (count 1');">1) and possessing a firearm in furtherance of a drug trafficking crime (count 9). [Record No. 1');">169] He was sentenced in June 201');">16 to 97 months' imprisonment for the conspiracy conviction and 60 months for the firearm conviction, to be served consecutively. [Record No. 239] The United States Court of Appeals for the Sixth Circuit affirmed May's sentence on appeal. [Record No. 324] May then filed a timely pro se motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255 in August 201');">18. [Record No. 354');">354');">354');">354]

         May's § 2255 motion was referred to a United State Magistrate Judge for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1');">1)(B). Magistrate Judge Matthew A. Stinnett recommended that May's motion for habeas relief be denied and that no Certificate of Appealability be issued. [Record No. 400] Neither May nor the United States filed objections to the Magistrate Judge's Report and Recommendation.

         Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which objections are made, 28 U.S.C. § 636(b)(1');">1)(C), “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 1');">140');">474 U.S. 1');">140, 1');">150 (1');">1985). Nevertheless, the Court has examined the record and, having made a de novo determination, agrees with the Magistrate Judge's recommended disposition.

         I.

         May retained attorney Robert Wright, who represented him during his initial appearance and arraignment on December 1');">1, 201');">15. However, Wright was permitted to withdraw from the case on December 23, 201');">15, because May did not have sufficient funds to pay him. Attorney Pamela Perlman was then appointed under the Criminal Justice Act. Perlman represented May during his guilty plea, sentencing, and through the filing of his appeal. The Sixth Circuit appointed attorney Kevin Schad to represent May during his appeal.

         Pursuant to his plea agreement, May waived the right to collaterally attack his guilty plea, conviction, and sentence, except for claims of ineffective assistance of counsel. [Record No. 237] He has raised a host of ineffective-assistance claims against Wright and Perlman in his § 2255 motion. To allege a valid claim of ineffective assistance of counsel, the defendant must demonstrate that counsel's assistance fell below an objective standard of reasonableness and that he was prejudiced by counsel's performance. Strickland v. Washington, 466 U.S. 668, 687 (1');">1984). The Court has reviewed each of May's claims and, applying this standard, finds that he is not entitled to relief under § 2255.

         II.

         As the Magistrate Judge noted, many of May's forty-one claims are refuted by the record. These include May's claims that he received ineffective assistance with respect to pretrial detention. Magistrate Judge Edward B. Atkins held a detention hearing in December 201');">15 and concluded that May should be detained pending trial. The Magistrate Judge noted that, although the defendant (with Attorney Wright's assistance) had offered evidence to suggest he would not pose a risk of flight or danger to others, there were no conditions of release that would ensure the safety of the community. Following Attorney Perlman's appointment, May filed objections to the Magistrate Judge's order of detention. This Court overruled the objections after a hearing on January 1');">14, 201');">16. [Record No. 1');">11');">17]

         May's arguments regarding pretrial detention boil down to this: his trial attorneys were ineffective for failing to “make bond happen.” [Record No. 354');">354');">354');">354-1');">1, p. 1');">17] However, counsel is not ineffective for simply failing to obtain a particular result. May contends that Wright performed ineffectively by failing to appeal the detention order, but Wright was permitted to withdraw shortly after the Magistrate Judge's decision regarding detention. Attorney Perlman promptly was appointed to represent May, and she filed objections to the detention order on his behalf. The objections were overruled based on May's “obvious reputation for drug activities, ” a recent incident in which individuals, including May, were shot, and the risk that May would continue to possess weapons. [Record No. 1');">120, pp. 5-6] May has not identified any particular arguments that counsel should have made, but did not, in support of pretrial release. Regardless, these determinations do not affect the ultimate disposition of charges or sentence in the case.

         May also contends that Wright performed ineffectively by failing to memorialize an oral agreement with the government to release May on bond prior to trial. First, there is no evidence to suggest that the parties ever reached such an agreement, since the United States moved for detention during May's initial appearance. Additionally, the Court reviewed the Magistrate Judge's decision de novo and determined that there were no conditions of release that would ensure the community's safety. Accordingly, May has failed to raise any colorable issue with respect to pretrial detention.

         May also complains that Perlman provided ineffective assistance by discussing statistical information with him and telling him to “take whatever deal they offer.” However, counsel does not provide ineffective assistance by offering candid advice regarding the likelihood of conviction at trial and the possible benefits of pleading guilty. See Roccisano v. Menifee, 1');">1');">293 F.3d 51');">1, 60 (2d Cir. 2002) (internal citations omitted).

         The Magistrate Judge discussed in detail May's sworn statements during his re-arraignment hearing, which belie his assertion that Perlman coerced him to plead guilty. May swore to provide truthful answers, subject to the penalty of perjury. He advised the Court that he was satisfied with Perlman's representation and that no one had in any way forced him to enter a guilty plea. [Record No. 276, p. 8] He indicated that he was pleading guilty because he was, in fact, guilty of counts 1');">1 and 9. May conceded that he agreed to sell cocaine because he was out of work and that he possessed a handgun for protection. [Record No. 276, pp. 24, 27]

         Solemn declarations made in open court carry a strong presumption of truthfulness. Peveler v. United States, 269 F.3d 693 (6th Cir. 2001');">1) (citing Blackledge v. Allison, 431');">1 U.S. 63, 74 (1');">1977)). May has not identified any information suggesting that his guilty plea was anything other than knowing and voluntary. Accordingly, he is bound by his plea agreement and the statements he made under oath during his plea colloquy. See Baker v. United States, 781');">1 F.2d 85, 90 (6th Cir. 1');">1986) (“[W]here the court ...


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