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 on Defendant Larry S. Combs
III's pro se Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. (Doc. # 68). Consistent
with local practice, this matter was referred to United
States Magistrate Judge Hanly A. Ingram for the purpose of
reviewing the Motion and preparing a Report and
Recommendation (“R&R”). On January 29, 2019,
Judge Ingram issued his R&R, wherein he recommends that
Defendant's Motion be denied. (Doc. # 85). Defendant
having filed Objections to the R&R (Doc. # 88), and the
United States having responded (Doc. # 89), the R&R is
now ripe for the Court's review. For the reasons set
forth herein, Defendant's Objections (Doc. # 88) are
overruled and the R&R (Doc. # 85) is adopted as the
findings of fact and conclusions of law of the Court.
FACTUAL AND PROCEDURAL BACKGROUND
December 1, 2017, Defendant Larry Combs pled guilty to
conspiring to distribute heroin and crack cocaine. (Docs. #
29, 55, and 56). At sentencing, Defendant's counsel,
Christopher L. Jackson, conceded that Combs qualified as a
career offender under the Sentencing Guidelines. (Doc. # 76
at 3). Defendant was sentenced to 138 months of imprisonment,
to be followed by ten years of supervised release. (Docs. #
62 and 63). Defendant did not appeal his conviction or
sentence. (Doc. # 68 at 2).
14, 2018, Defendant filed the instant Motion to Vacate, in
which he raised three arguments. First, Defendant asserted
that the federal prosecutor in his case failed to disclose
exculpatory evidence in violation of his due process rights
pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Id. at 4. Second, Defendant alleged that he was
improperly classified as a career offender based on his prior
conviction for drug trafficking in Ohio state court.
Id. at 5. Third, Combs made several claims of
ineffective assistance of counsel (“IAC”),
including that his attorney performed deficiently by failing
to challenge Defendant's conspiracy charge. (Doc. # 70 at
4). Defendant also claimed that his guilty plea-which
included an appeal and collateral-attack waiver-was unknowing
and unintelligent because his counsel was ineffective. (Doc.
# 68 at 6). In support of his Motion to Vacate, Defendant
submitted a memorandum, two exhibits, and a Supplement.
(Docs. # 68-1, 68-2, and 70). The United States filed a
Response in Opposition. (Doc. # 81) and Defendant submitted a
Reply. (Doc. # 84).
R&R, Judge Ingram found that by pleading guilty, Combs
validly waived all claims other than ineffective assistance
of counsel (“IAC”), and thus his Plea Agreement
barred his Brady claim and his career-offender claim. (Doc. #
85 at 3-8). Judge Ingram also rejected Defendant's
argument that his attorney was ineffective for failing to
challenge Combs's classification as a career offender,
finding that Defendant's prior trafficking conviction was
sufficient to qualify as a career-offender predicate under
United States v. Robinson, 333 Fed.Appx. 33 (6th Cir. 2009).
Id. at 11. Finally, Judge Ingram found that
Defendant's attorney had not been ineffective for failing
to challenge the Indictment, which charged Defendant with
conspiracy to violate the drug laws. Id. at 5-6.
filed Objections to Judge Ingram's R&R on February
22, 2019. (Doc. # 88). The United States filed a Response to
the Objections on March 8, 2019. (Doc. # 89).
Standard of Review
Court reviews de novo those portions of the R&R to which
specific objections have been filed. Mira v. Marshall, 806
F.2d 636, 637 (6th Cir. 1986). Where no objections are made,
or the objections are vague or conclusory, the Court is not
required to review under any standard. Thomas v.
Arn, 474 U.S. 140, 150 (1985); United States v. Jenkins,
No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug. 8,
2017). The findings of fact and conclusions of law in the
R&R to which Defendant has not objected are adopted as
the Court's. Arn, 474 U.S. at 150.
in pro se habeas complaints are held to a less
stringent standard and are construed liberally, however
“inartfully pleaded.” Franklin v. Rose,
765 F.2d 82, 84-85 (6th Cir. 1985) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)). However, 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. Shephard, No.
5:09-cr-81-DLB, 2016 WL 9115464, at *1 (E.D. Ky. Sept. 18,
2016) (quoting VanDiver v. Martin, 304 F.Supp.2d
934, 938 (E.D. Mich. 2004)). Thus, “objections that
merely restate arguments raised in the memoranda considered
by the Magistrate Judge are not proper, and the Court may
consider such repetitive arguments waived.” Holl v.
Potter, No. C-1-09-618, 2011 WL 4337038, at *1 (S.D.
Ohio Sept. 15, 2011). 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.”
Shephard, 2016 WL 9115464, at *1 (citing
VanDiver, 304 F.Supp.2d at 938).
Defendant's Objections are
Defendant's conspiracy ...