United States District Court, E.D. Kentucky, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. BUNNING, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the June 6, 2018 Report and
Recommendation (“R&R”) of United States
Magistrate Judge Robert E. Wier (Doc. # 384), wherein he
recommends that Defendant's Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. #
355) be denied on all but one claim, and that an evidentiary
hearing be held on the remaining claim. The United States and
Defendant Brent Evans both having filed timely Objections
(Docs. # 387 and 390) and the United States having timely
responded to Defendant's Objections (Doc. # 391), the
R&R is now ripe for the Court's review. For the reasons
set forth herein, the United States' Objections are
overruled, Evans's Objections are overruled, and the
R&R is adopted in full as the findings of fact and
conclusions of law of the Court. This case will be referred
to Magistrate Judge Edward Atkins for further proceedings
consistent with Judge Wier's R&R and this Order.
FACTUAL AND PROCEDURAL BACKGROUND
September 25, 2013, Brent D. Evans was indicted on
drug-distribution charges. (Doc. # 1). A superseding
indictment was returned on May 8, 2014. (Doc. # 77). That
indictment specifically charged Evans with one count of
conspiracy to distribute oxycodone, four counts of aiding and
abetting the distribution of oxycodone, one count of aiding
and abetting the knowing and intentional possession of
oxycodone with the intent to distribute, and one count of
witness tampering. Id. at 1-4. Specifically, Evans
was charged with managing an organization that illegally
obtained and sold thousands of pills of oxycodone between
2011 and 2013. (Doc. # 384 at 2). The pills were obtained by
his co-defendants from pain clinics in Maryland and Texas and
were sold in the Eastern District of Kentucky. Id.
In 2014, after the return of the first indictment, Evans was
also charged with threatening to harm one of his
co-defendants and her family “if she cooperated with
law enforcement.” Id.
Evans was convicted by a jury of all six drug-trafficking
counts. However, he was acquitted of the witness-tampering
count. (Doc. # 201). On February 26, 2015, Evans was
sentenced to 360 months of imprisonment followed by 10 years
of supervised release. (Doc. # 291). Evans appealed to the
Sixth Circuit, which affirmed. (Doc. # 351 at 1). The Supreme
Court denied Evans's petition for a writ of certiorari.
Evans v. United States, 137 S.Ct. 522 (2016).
November 27, 2017, Evans timely filed the pending Motion to
Vacate. (Doc. # 355). The Court permitted Evans to file a
supplemental Memorandum in Support of his Motion. (Doc. #
371). In his Motion, Evans makes (1) five claims of
ineffective assistance of counsel (at least one against each
of his three successive attorneys), (2) objects to the
application of four enhancements at sentencing, (3) claims
his sentence exceeds the statutory maximum and violates the
Eighth Amendment, and (4) argues that this Court abused its
discretion before and during trial on four occasions. See
(Doc. # 384 at 4, 5, 26, 31, 32) (summarizing Evans's
claims). Evans also requested an evidentiary hearing. (Doc. #
371 at 20). The Motion to Vacate was fully briefed (Docs. #
374 and 381).
1, 2018, Judge Wier filed his R&R in which he recommends
that Evans's Motion to Vacate be denied as to all but one
claim; on the remaining claim-ineffective assistance of
counsel with regard to plea consultation-Judge Wier
recommends that this Court hold an evidentiary hearing in
order to adjudicate the matter. (Doc. # 384 at 37). Both the
United States and Evans filed Objections to the R&R, and
the United States filed a response to Evans's Objections.
(Docs. # 387, 390 and 391). The R&R is now ripe for the
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. § 636(b)(1)(B).
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).
‘an “objection” that does nothing more than
state a disagreement with a magistrate's suggested
resolution, or simply summarizes what has been presented
before, is not an “objection” as that term is
used in this context.'” United States v.
Vanover, No. 2:10-cr-14, 2017 WL 1356328, at *1 (E.D.
Ky. Apr. 11, 2017) (quoting VanDiver v. Martin, 304
F.Supp.2d 934, 938 (E.D. Mich. 2004)). “Where an
objection is simply a repetition of what the Magistrate Judge
has already considered, it fails ‘to put the Court on
notice of any potential errors in the Magistrate's
R&R.'” United States v. Bowers, No.
0:06-cv-7-DLB-REW, 2017 WL 6606860, at *1 (E.D. Ky. Dec. 26,
2017) (quoting United States v. Shephard, No.
5:09-cr-81-DLB, 2016 WL 9115464, at *1 (E.D. Ky. Sept. 18,
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).