United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge
matter is before the Court on the Recommended Dispositions
filed by United States Magistrate Judge Hanly A. Ingram. The
Defendant, Justin Glenn Cater, first filed a pro se
motion to vacate his sentence pursuant to 28 U.S.C. §
2255. [R. 33.] Judge Ingram reviewed the motion and prepared
a Recommended Disposition. [R. 39.] Mr. Cater filed an
objection to this recommendation. [R. 40.] The United States
has not filed a response.
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Recommended Disposition or else waive his rights to appeal.
In order to receive de novo review by this Court,
any objection to the recommended disposition must be
specific. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986). A specific objection “explain[s] and
cite[s] specific portions of the report which [counsel]
deem[s] problematic.” Robert v. Tesson, 507
F.3d 981, 994 (6th Cir. 2007). A general objection that fails
to identify specific factual or legal issues from the
recommendation, however, is not permitted, since it
duplicates the Magistrate's efforts and wastes judicial
economy. Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). When no
objections are made, however, this Court is not required to
“review . . . a magistrate's factual or legal
conclusions, under a de novo or any other standard . . .
.” Thomas v. Arn, 474 U.S. 140, 150 (1985).
Parties who fail to object to a Magistrate's report and
recommendation are also barred from appealing a district
court's order adopting that report and recommendation.
United States v. Walters, 638 F.2d 947 (6th Cir.
Cater filed a timely objection to the initial Recommended
Disposition. [R. 40.] The Court acknowledges its duty to
review Mr. Cater's filings under a more lenient standard
than the one applied to attorneys because he is proceeding
pro se. See Franklin v. Rose, 765 F.2d 82,
84-85 (6th Cir. 1985). Under this more lenient construction,
the objection is sufficiently definite to trigger the
Court's obligation to conduct a de novo review.
See 28 U.S.C. § 636(b)(1)(c). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law
and statutory authority, as well as applicable procedural
rules. For the following reasons, Mr. Cater's objection
will be OVERRULED.
Ingram sets forth the factual and procedural background of
the case in his initial Recommended Disposition. The Court
mentions only key facts to frame its discussion and analysis,
incorporating Judge Ingram's discussion of the record
into this Order.
Cater was charged with one count of possession of a firearm
by a convicted felon. [R. 1.] Afterwards, the Court appointed
T. Hunter Payne to represent him. [R. 12.] With counsel's
advice, Mr. Cater entered a guilty plea (without a written
plea agreement), which Judge Ingram accepted on January 26,
2016. [R. 23.] At the hearing, Mr. Cater conceded that the
government could establish the elements of the crimes charged
in the Indictment. [R. 39.] Mr. Cater admitted that he was a
convicted felon who possessed a .22 revolver. Id. He
admitted there was no reasonable doubt that he was caught in
possession of said firearm after fleeing from police in a
vehicle on November 22, 2014. Id. Accordingly, on
May 27, 2016, Mr. Cater was sentenced to 96 months'
imprisonment to run consecutively with his undischarged state
sentence. [R. 30.]
March 27, 2017, Mr. Cater filed his Motion to Vacate pursuant
to § 2255, alleging one claim of ineffective assistance
of counsel. [R. 33 at 4.] In conjunction, Mr. Cater requests
an evidentiary hearing into this matter. Id. at 7.
On August 2, 2017, Judge Ingram issued a Report and
Recommendation, recommending Mr. Cater's claim be denied.
[R. 39.] Mr. Cater objects to that recommendation. [R. 40.]
the Motion to Vacate, Mr. Cater alleges ineffective
assistance of counsel for his attorney's failure to
investigate certain forensic evidence. [R. 33 at 4.] Judge
Ingram thoughtfully considered the claim and this Court is in
agreement with his conclusions. The Court now turns to Mr.
Cater's single objection to the Report and
Recommendation. The Court is obliged to conduct an
evidentiary hearing “[u]nless the motion and the files
and records of the case conclusively show that the prisoner
is entitled to no relief.” 28 U.S.C. § 2255. Under
Strickland v. Washington, Mr. Cater must prove both
deficient performance and prejudice to assert successfully an
ineffective assistance of counsel claim. 466 U.S. 668, 687
(1984); Pough v. United States, 442 F.3d 959, 964
(6th Cir. 2006).
Cater's only objection is to Judge Ingram's finding
that the evidence satisfied the elements of the crime, 18
U.S.C. § 922(g)(1). [R. 40 at 3.] Specifically, Mr.
Cater argues that “a handgun with a non-functional
firing pin does not meet the definition of
“firearm.” 18 U.S.C. § 921(a)(3)(A); [R. 39
at 5.] He is wrong. A firearm is a firearm, whether
functional or not. See United States v. Yannott, 42
F.3d 999, 1006 (6th Cir. 1994); United States v.
Butler, 101 Fed.Appx. 97, 98 (6th Cir. 2004); United
States v. Alkufi, 636 Fed.Appx. 323, 329 (6th Cir.
2016); United States v. Bandy, 239 F.3d 802, 805
(6th Cir. 2001); see also United States v. Mack, 258
F.3d 548, 552 (6th Cir. 2001).
similar circumstances, a defendant challenged his conviction
because his gun's firing pin was broken, rendering the
weapon incapable of firing. Yannott, 42 F.3d at
1006. The defendant argued that his weapon's
dysfunctionality precluded § 922(g)(1) charges.
Id. The Sixth Circuit disagreed and held that
“[i]t is sufficient if the weapon was designed to expel
a projectile or could readily be converted to the do the
same.” Id. at 1007. Mr. Cater's case is no
different. Section 921(a)(3)(A) includes weapons
“designed to… expel a projectile.” 18
U.S.C. § 921(a)(3)(A). The plain language of the statute
supports a conviction for inoperable firearms. 18 U.S.C.
Cater's attorney reasonably declined to pursue the
meritless argument that he now advocates for. Although the
Court is sympathetic to overworked public defense programs,
their lack of resources makes Mr. Cater's argument no
more plausible. He was properly charged as a felon in
possession of a firearm in contravention of 18 U.S.C §
922(g)(1). Having failed to establish deficient counsel, Mr.
Cater cannot satisfy the Strickland standard. As
such, the record “conclusively show[s] that [Mr. Cater]