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United States v. Sullivan

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

March 26, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
GREGORY SULLIVAN DEFENDANT

          ORDER ADOPTING REPORT AND RECOMMENDAT

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Proceeding pro se, Defendant Gregory Sullivan filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on September 16, 2016. (Doc. # 356). This is Sullivan's third such Motion to Vacate in the course of his protracted post-conviction proceedings. (Doc. # 423 at 1); see also (Docs. # 213 and 239). Sullivan was convicted in 2003 of robbing multiple financial institutions in Kentucky. He pursued a direct appeal and two Motions to Vacate[1] following his conviction. (Doc. # 423 at 2, 4). All were unsuccessful but “a limited 2015 resentencing after the habeas appeal . . . revived the nearly dead case.” Id. at 2. Following resentencing Sullivan did not directly appeal the new Judgment. Id. at 5. Rather, he filed the instant Motion to Vacate. Id. Pursuant to the Court's local practice, the Motion was referred to a magistrate judge for preparation of a Report and Recommendation (R&R). Accordingly, this matter is presently before the Court on the R&R of Magistrate Judge Robert E. Wier, [2] wherein Judge Wier recommended that the Court deny Sullivan's Motion to Vacate. Id. at 72. Judge Wier also generously ordered that Sullivan could file up to forty pages of objections to the R&R. Id.

         After two extensions of time to file his objections, see (Docs. # 425 and 427), Sullivan filed a Motion for Leave to File Excess Pages (Doc. # 429), and attached his proposed Objections, totaling seventy-four pages in length. (Doc. # 429-1). The United States filed a Response in opposition to the Motion for Leave, citing Sullivan's pattern of ignoring the Court's Orders to comply with the Local Rules' page limits. (Doc. # 430) (citing Docs. # 373, 375, 379, 391, 417, and 419). Sullivan filed a Reply in support of his Motion for Leave, pointing out that the length of his proposed Objections is reasonable because the R&R totals seventy-three pages. (Doc. # 431). Out of an abundance of caution, the Court will consider the entirety of Sullivan's proposed Objections, despite his failure to comply with Judge Wier's Order. (Doc. # 423) (ordering that Sullivan's objections must be limited to forty total pages). Accordingly, the R&R is now ripe for the Court's review.[3]

         II. ANALYSIS

         A. Standard of Review

         Requiring “the filing of objections is supported by sound considerations of judicial economy. 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). Objections to an R&R must be “specific written objections to the proposed findings and recommendations.” Fed. R. Crim. P. 59(b)(2). “The 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)). Also, “[w]here 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'” and is improper. 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)). Finally, when objections are so unclear that “even the most perspicacious judge [would have] to guess at its meaning . . . the district court judge should not be forced to waste time interpreting such requests.” Howard v. Sec. of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

         Properly-objected-to portions of the R&R will be reviewed by the Court de novo. Fed. R. Crim. P. 59(b)(3). However, “to the extent the Court can identify specific objections, the Court ‘is not required to articulate all of the reasons it rejects a party's objections.”' Hnatiuk v. Rapelje, No. 06-13880, 2010 WL 2720881, at *1 (E.D. Mich. July 8, 2010) (quoting Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D. Mich. 2001)); see also Tuggle v. Seabold, 806 F.2d 85, 92 (6th Cir. 1986).

         B. Defendant failed to raise any specific, discernable objections to the R&R.

         Like his initial Motion to Vacate, Defendant's seventy-four pages of proposed Objections are repetitive, offer limited legal discussion, and “make[] precious few cites to the specific evidence he intends the Court to review.” (Doc. # 423 at 9, 16 n.13). In some cases, Sullivan goes pages without specifically objecting to anything in the R&R; rather he makes a general objection and then launches into a rambling, unfounded, and uncited recitation of the facts allegedly supporting his theory that he was framed for these crimes. (Doc. # 429-1 at 60-68) (making conclusory objections at the beginning of a section and then vaguely alluding to alleged problems with Judge Wier's R&R). Many of his objections are vague, general, and conclusory. Others, even construed loosely, are incomprehensible. While the Court is required to construe pro se filings leniently, Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985), “Sullivan [still] is the movant and has the burden of justifying relief.” (Doc. # 423 at 9). Judge Wier aptly noted that Sullivan's “procedural lapses not only make the plowing difficult, they also undercut the validity and proper presentation of the theories for relief.” Id. The Court has done its best to carefully review Sullivan's specific objections, but his rambling paragraphs that jump from topic to topic, see, e.g., (Doc. # 429-1 at 22-23, 50), make this task extremely difficult. Unfortunately for Sullivan, “[c]laim volume does not correlate to claim merit.” (Doc. # 423 at 7).

         1. Many of defendant's objections are improperly repetitive.

         Throughout Sullivan's seventy-four pages, he asserts and reasserts arguments that have already been made to the Court, which is procedurally improper. Bowers, 2017 WL 6606860, at *1. For example, when “objecting” to Judge Wier's conclusion that some of Sullivan's Brady claims were procedurally defaulted, Sullivan repeats-almost verbatim-swaths of his Reply brief in his proposed Objections. Compare (Doc. # 420 at 2), with (Doc. # 429-1 at 8). He again repeats the same information and arguments in objecting to Judge Wier's analysis surrounding the bait bills. Compare (Doc # 420 at 10-11), with (Doc. # 429-1 at 12-13). In fact, nearly all of Sullivan's Reply brief is repeated in his objections;[4] in some cases arguments are repeated word-for-word and in other cases Sullivan uses his objections to further explain arguments from his Reply. Similarly, Sullivan's proposed Objections echo the arguments first made in his Motion to Vacate. Compare, e.g., (Doc. # 407 at 12), with (Doc. # 429-1 at 57-58). As a result, the vast majority of Sullivan's objections are merely repetitive of arguments previously made before the Court. He appears to use his objections as a vehicle to get a second bite at the apple and put the same arguments before this Court in hopes that it might come to a different conclusion than Judge Wier. Such an attempt frustrates the purpose of the R&R process; thus, these objections must be overruled.[5]

         2. Defendant's objections to page limitation lacks merit.

         Additionally, Sullivan objects time and again-including in these proposed Objections-to the Court limiting the length of his Motion to Vacate.[6] See, e.g., (Doc. # 429-1 at 1-2, 10, 45). Sullivan, however, continually fails to cite any precedent showing that the Court erred in limiting Defendant's Motion to Vacate to the page limit allowed by the Local Rules. LR 7.1(d). As much as Sullivan may want the law to allow him to submit a six-hundred-and-three-page filing including a memorandum and exhibits in support of his Motion to Vacate, (Doc. # 369), the local rules simply do not allow him to do so. Nor has Sullivan made any showing that his three-hundred-and-forty-four-page memorandum would add substance to his argument in any meaningful way. All people with matters before the Court-including Sullivan-must present their arguments in a clear and concise manner. Allowing Sullivan an exception to this rule would frustrate the interests of judicial efficiency and would squander limited judicial resources. Once again, this objection will be overruled.

         3. Defendant's objections on the ground that he disagrees with the R&R are improper.

         Also, many of Sullivan's objections indicate mere disagreement with Judge Wier's analysis or conclusions. Such objections are also procedurally improper. Vanover, 2017 WL 1356328, at *1. For example, Judge Wier found that the prosecutors failed to turn over two pieces of evidence-the Bait Bill evidence log and the Boone County Sheriff's Office report-that may have been favorable to Sullivan, but ultimately found that the nondisclosure was not prejudicial to him. (Doc. # 423 at 29-33). Sullivan objects to Judge Wier's conclusion that the non-disclosure of the Bait Bill evidence log was not prejudicial by, among other things, alleging that the bank teller lied on the stand about the bait bills, unconvincingly alluding that the log would have discredited the testimony, and speculating that the jury believed the teller's testimony. (Doc. # 492-1 at 11-13). The Court finds such an objection to be a mere disagreement with Judge Wier's conclusion that the log would not have impeached the teller's testimony. (Doc. # 423 at 20-21).

         Sullivan similarly disagrees with how Judge Wier interprets the evidence before him. See, e.g., (Doc. # 429-1 at 51) (explaining that the “magistrate do[es] not realize how suspect this alleged fingerprint is” thus suggesting that Sullivan disagrees with how Judge Wier viewed the evidence); see also (Doc. # 429-1 at 24) (explaining that the magistrate judge “fails to realize [statements of witnesses] were not true”). Many of these disagreement objections are also repetitive, and thus have already been overruled by this Court. To the extent that any “disagreement” objections have not yet been overruled, the Court hereby overrules them.

         4. Defendant's request that the Court “review” ...


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