Opinion
Case Nos. 1:92-CR-15-1, 1:05-CV-207, 1:97-CV-609.
November 19, 2009
ORDER
This matter is before the Court on Petitioner Christopher L. Solomon's motion pursuant to Federal Rule of Civil Procedure 60(b) to issue ruling on claim raised in motion pursuant to 28 U.S.C. § 2255 (Doc. No. 199), Magistrate Judge Merz's Report and Recommendation of September 22, 2009 (Doc. No. 200) recommending that Petitioner's motion be denied, and Petitioner's objections to the Report and Recommendation (Doc. No. 205). For the reasons that follow, Petitioner's objections are not well-taken and are OVERRULED; the Court ADOPTS Magistrate Judge Merz's Report and Recommendation; Petitioner's motion is not well-taken and is DENIED.
This case illustrates that some horses are not so dead that they cannot be beaten one more time. In his Rule 60(b) motion, Petitioner contends that the Court failed to rule on the claim raised in his § 2255 motion that his trial counsel was ineffective for failing to advise him that he could have filed a motion challenging the government's use of a third-party's residence to conduct a sting operation which resulted in his arrest and conviction in this case. Petitioner contends that had counsel advised him to raise this defense by motion, and had such a motion been denied by the trial judge, he would have then accepted a plea agreement from the government which would have resulted in a ten year term of imprisonment, instead of the twenty year term he is now serving.
Contrary to Petitioner's current motion, both this Court and Magistrate Judge Merz have explained at length that trial counsel was not ineffective for failing to advise him to file such a motion because the Sixth Circuit does not recognize a due process defense based on alleged outrageous conduct on the part of the government. United States v. Tucker, 28 F.3d 1420 (6th Cir. 1994). Counsel is not ineffective for failing to advise a client to raise frivolous or non-meritorious defenses. Alexander v. Smith, 311 Fed. Appx. 875, 890 (6th Cir. 2009).
Hopefully this is a plain enough statement of the Court's ruling on this claim. If not, it will have to suffice. The Court will not expend additional time and effort locked in serve and volley with Petitioner considering each new nuance to the above rule that he can conceive. Further pleadings raising this issue, in whatever form and however captioned, will be summarily stricken from the record.
Accordingly, Petitioner's objections to the Report and Recommendation are not well-taken and are OVERRULED. The Court ADOPTS the Report and Recommendation. Petitioner's Rule 60(b) motion is not well-taken and is DENIED.
IT IS THEREFORE ORDERED:
1. Petitioner's motion pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (Doc. No. 199) is not well-taken and is DENIED.
2. A certificate of appealability shall not issue on the matters raised herein. See 28 U.S.C.A. § 2253(c); Fed.R.App.P. 22(b). Petitioner remains free to request issuance of the certificate of appealability from the Court of Appeals. Id.
3. The Court certifies pursuant to 28 U.S.C.A. § 1915(a)(3) that an appeal of this order would not be taken in good faith, and therefore DENIES Petitioner leave to appeal in forma pauperis. See Fed.R.App.P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).