United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge
matter is before the Court upon the February 23, 2018 Report
and Recommendation (“R&R”) of United States
Magistrate Judge Hanly A. Ingram (Doc. # 146), wherein he
recommends that Defendant's Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. #
124) be granted. Defendant's Motion for Ruling (Doc. #
154) is also before the Court. The United States having
timely filed Objections to the R&R (Doc. # 147), and
Howard having timely responded to the Objections (Doc. #
150), the R&R is now ripe for the Court's review. For
the reasons set forth herein, the United States'
Objections are hereby overruled and the R&R is adopted as
the findings of fact and conclusions of law of the Court.
FACTUAL AND PROCEDURAL BACKGROUND
11, 2015, James P. Howard was indicted on drug-distribution
charges. (Doc. # 1). Specifically, he was charged with one
count of conspiracy to distribute a mixture or substance
containing heroin, and two counts of aiding and abetting the
distribution of a mixture or substance containing heroin.
Id. at 1-3. Howard was accused of driving his
co-defendant, Duran Jefferson, to Erlanger, Kentucky on
December 1, 2014 to sell heroin. (Doc. # 91 at 1). Howard was
stopped by agents nine days later and “he admitted to
driving Jefferson around to make a heroin transaction.”
Id. at 2. Howard acknowledged that “he knew
what Jefferson was doing but indicated that he did not
personally sell or touch the heroin.” Id.
ultimately pled guilty to Count 4 of the indictment-aiding
and abetting distribution of heroin-on May 20, 2016.
Id. at 1. He was sentenced on August 18, 2016 to 120
months of imprisonment. (Doc. # 109). During his sentencing,
Howard was notified of his right to appeal his sentence
within 14 days of entry of the Judgment. (Doc. # 108). Howard
alleges that he instructed his attorney to file an appeal on
his behalf immediately after sentencing, but no notice of
appeal was timely filed. (Doc. # 124 at 7). On November 14,
2016, Defendant Howard moved to reopen the appeal period; his
motion was denied. (Docs. # 111 and 112). The Sixth Circuit
dismissed his appeal of that decision for want of
prosecution. (Doc. # 121).
August 18, 2017, Defendant filed the pending Motion to
Vacate. (Doc. # 124). In his Motion, Howard argues that his
attorney, Ms. Deanna Dennison, was constitutionally deficient
because she failed to file a timely appeal despite his
request, and therefore his Sixth Amendment rights had been
violated. The Motion was fully briefed (Docs. # 132 and 137)
and Magistrate Judge Hanly A. Ingram held an evidentiary
hearing on February 13, 2018 (Doc. # 145) to determine the
disputed factual issue of whether Howard in fact asked his
attorney to file an appeal on his behalf. (Doc. # 146 at 1).
February 23, 2018, Judge Ingram filed his R&R in which he
recommends that Howard's Motion to Vacate be granted.
Id. at 10. Specifically, Judge Ingram found that,
based on the submitted affidavits and testimony at the
evidentiary hearing, “the balance of evidence tips in
favor of finding that Howard, at the end of his sentencing
hearing, asked his attorney to file a notice of
appeal.” Id. An attorney's failure to file
a requested appeal is per se ineffective assistance of
counsel, and thus, Judge Ingram recommended that Howard's
Motion be granted. Id. (citing United States v.
Campbell, 686 F.3d 353, 360 (6th Cir. 2012)).
Standard of Review
may grant relief under 28 U.S.C. § 2255 if the defendant
establishes that: (i) the sentencing court imposed his
sentence in violation of the Constitution or laws of the
United States; (ii) the court lacked jurisdiction to impose
the sentence; (iii) the sentence imposed exceeded the maximum
authorized by law; or (iv) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). Pursuant to
28 U.S.C. § 636(b)(1)(B), a district court judge may
refer dispositive matters, including a motion to vacate a
sentence under 28 U.S.C. § 2255, to a magistrate judge
for the preparation of a report and recommendation.
See also Fed. R. Crim. P. 59(b)(1). “[T]he
magistrate judge must promptly conduct the required
proceedings” and “enter on the record a
recommendation for disposing of the matter, including any
proposed findings of fact.” 28 U.S.C. §
have fourteen days “after being served with a copy of
the recommended disposition” to specifically object in
writing to the findings and recommendations in a magistrate
judge's R&R. Fed. R. Crim. P. 59(b)(2). “The
filing of objections to a magistrate's report enables the
district judge to focus attention on those issues-factual and
legal-that are at the heart of the parties'
dispute.” Thomas v. Arn, 474 U.S. 140, 147
(1985). However, “[t]he filing of vague, general,
objections does not meet the requirement of specific
objections and is tantamount to a complete failure to
object.” Cole v. Yukins, 7 Fed.Appx. 354, 356
(6th Cir. 2001). Once filed, the referring district court
judge must review the specific objections de novo and
“accept, reject, or modify the recommendation, receive
further evidence, or resubmit the matter to the magistrate
judge with instructions.” Fed. R. Crim. P. 59(b)(3).
March 6, 2018, the United States timely filed Objections to
the R&R. (Doc. # 147). The United States objected to
Judge Ingram's weighing of the evidence and his finding
that the Defendant did immediately ask his attorney to
appeal. Id. at 1. The United States specifically
argues that Judge Ingram “g[ave] undue emphasis to the
allegations in the affidavits filed in this matter and
fail[ed] to give sufficient weight to the actual testimony
presented in the evidentiary hearing.” Id. The
Court will thus review de novo Judge Ingram's factual
determination that Howard immediately asked his attorney to
file an appeal. Fed. R. Crim. P. 59(b)(3).
a magistrate's findings and recommendations are based on
an evaluation of the credibility of the witnesses, a district
court is not required to re-hear the testimony to make a
determination of the issues.” United States v.
Davidson, No. 6:05-cr-30-DCR, 2008 WL 170507, at *6
(E.D. Ky. Jan 17, 2008) (citing United States v.
Raddatz,447 U.S. 667, 675-76 (1980)).
“Credibility determinations of the magistrate judge who
personally listened to the testimony of a witness should be
accepted by a district judge unless in his de novo review of
the record he finds a reason to question the magistrate