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United States v. Evans

United States District Court, E.D. Kentucky, Northern Division

March 7, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
BRENT D. EVANS DEFENDANT

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DAVID L. BUNNING, UNITED STATES DISTRICT JUDGE

         This 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.[1] 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         Defendant 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).

         On 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).

         On June 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 Court's review.

         II. ANALYSIS

         A. Standard of Review

         A court 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).

         Parties 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).

         “Moreover, ‘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, 2016)).

         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).

         B. ...


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