Opinion
Case No. 1:20-cr-20434-2
2023-01-20
UNITED STATES of America, Plaintiff, v. David BARKER, Defendant.
Tim M. Turkelson, U.S. Attorney, DOJ-USAO, Flint, MI, Adriana Dydell, U.S. Attorney, U.S. Department of Justice, Detroit, MI, Michael El-Zein, U.S. Attorney, U.S. Attorney's Office, Detroit, MI, for Plaintiff.
Tim M. Turkelson, U.S. Attorney, DOJ-USAO, Flint, MI, Adriana Dydell, U.S. Attorney, U.S. Department of Justice, Detroit, MI, Michael El-Zein, U.S. Attorney, U.S. Attorney's Office, Detroit, MI, for Plaintiff. OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING DEFENDANT'S MOTIONS TO VACATE AND MOTION FOR APPOINTED COUNSEL THOMAS L. LUDINGTON, United States District Judge
This matter is before this Court upon Plaintiff's objections to the Magistrate Judge's Report and Recommendation (R & R). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(3), the portions of the R & R to which Defendant properly objects are reviewed de novo.
Defendant's objections will be overruled, the R & R will be adopted, and Defendant's motions will be denied.
I.
After pleading guilty to distributing more than 28 grams of crack, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), Defendant David Barker was sentenced to 262 months' imprisonment followed by 8 years of supervised release. ECF No. 107.
Defendant's sentence runs concurrent with his 36-month sentence for violating the terms of his supervised release in United States v. Barker, No. 1:02-CR-20054-5 (E.D. Mich. Apr. 23, 2021), ECF No. 194. That term of supervised release was following Defendant's 18-month term of imprisonment consequent to him pleading guilty to distribution and aiding and abetting distribution of crack, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1). See United States v. Barker, No. 1:02-CR-20054-5 (E.D. Mich. Feb. 5, 2004), ECF No. 126.
Eleven months later, Defendant filed a motion to vacate sentence under 28 U.S.C. § 2255, ECF No. 151, a motion to appoint appellate counsel, ECF No. 153, and a motion for leave to amend his § 2255 motion, ECF No. 154. They were referred to Magistrate Judge Patricia T. Morris, ECF No. 155, who denied the Motion to Appoint and the Motion to Amend, see ECF No. 156.
A month later, Defendant filed an amended § 2255 motion, ECF No. 159, a motion to amend his original § 2255 motion, ECF No. 160, and another motion to appoint counsel, ECF No. 161. These motions were also referred to Judge Morris. ECF No. 163. Then Defendant appealed the denial of his first Motion to Appoint Counsel, ECF Nos. 164; 165, and his Judgment, ECF Nos. 166; 167. All his pending motions were transferred to the Sixth Circuit for lack of jurisdiction. ECF Nos. 171; 181. The Sixth Circuit dismissed the appeal of those motions for lack of jurisdiction. ECF Nos. 173; 174. Then the appeal of Defendant's Judgment was denied as untimely, ECF No. 182, and the three transferred motions were remanded, ECF No. 184, and then referred to Judge Morris, ECF Nos. 186; 187.
Judge Morris has since issued an R & R to deny Defendant's Motion to Vacate, Amended Motion to Vacate, and Motion for Counsel. ECF No. 192. Defendant objects. ECF No. 193.
II.
A.
The parties may object to and seek review of a magistrate judge's report and recommendation. See FED. R. CIV. P. 72(b)(2). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." FED. R. CIV. P. 72(b)(3). The parties must state any objections with specificity within a reasonable time. Thomas v. Arn, 474 U.S. 140, 151, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (citation omitted). Failure to file specific objections is a waiver of any further right of appeal. Id. at 155, 106 S.Ct. 466; Howard v. Sec'y of Health & Hum. Servs., 932 F.2d 505, 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). Parties may not "raise at the district court stage new arguments or issues that were not presented" before the magistrate judge's final R & R. See Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
When reviewing an R & R de novo, this Court must review at least the evidence that was before the magistrate judge. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, this Court may accept, reject, or modify the Magistrate Judge's findings or recommendations. FED. R. CIV. P. 72(b)(3); Peek v. Comm'r of Soc. Sec., 585 F. Supp. 3d 1014, 1017 (E.D. Mich. 2021).
B.
Defendant has filed seven objections, which will be addressed in turn. ECF No. 193.
1.
First, Defendant objects "that the Court impermissibly denied him counsel throughout the 2255 proceeding in violation of his Sixth and Fourteenth Amendment rights." ECF No. 193 at PageID.1231 (citing 28 U.S.C. § 2255(g)). He adds that he is entitled to counsel under 18 U.S.C. § 3006A. Id. at PageID.1231-32. He concludes that Judge Morris's "failure to conduct any inquiry into [his] motion violated due process. Id. at PageID.1232 (citing United States v. Gonzales, 1113 F.3d 1026 (9th Cir. 1997)).
But that objection will be overruled because Defendant "did not make that argument to Judge Morris." Austin v. Stapleton, No. 1:22-CV-11895, 628 F.Supp.3d 702, 706 (E.D. Mich. Sept. 15, 2022) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).
Yet that argument would fail on the merits too. As Judge Morris said, Defendant is not entitled to counsel because he "has had no difficulty in filing motions on his own or putting forth his claims[, which] simply lack merit." ECF No. 192 at PageID.1227. Indeed, Defendant has a seasoned history of filing pro se motions on complex legal issues in his criminal cases, so the interests of justice do not warrant counsel here. See United States v. Curney, 581 F. Supp. 3d 910, 912 (E.D. Mich. 2022) (denying motion to appoint counsel because defendant "filed an intelligible pro se motion for the same relief less than four months ago"); United States v. Wright, 596 F. Supp. 3d 967, 969 (E.D. Mich. 2022) (same because First Step Act "motions do not involve complex facts or legal doctrines that would prevent him from effectively bringing the motion on his own behalf"). "And Defendant has provided no explanation for his request." United States v. Hogg, No. 1:11-CR-20220, 629 F.Supp.3d 728, 730 (E.D. Mich. Sept. 21, 2022).
And, generally, a motion to vacate a sentence under § 2255 does not warrant appointed counsel because it does not involve complex facts or legal doctrines that would prevent defendants from effectively bringing the motion on their own behalf. See MacLloyd v. United States, 684 F. App'x 555, 561 (6th Cir. 2017) (unpublished) ("Finally, the burden for receiving an evidentiary hearing under § 2255 is light."). Nor has Defendant argued as much. See ECF No. 161.
2.
Second, Defendant objects that "the district court impermissibly recharact[e]rized his civil 2255 docket . . . to circumvent litigation on the merits." ECF No. 193 at PageID.1232 (citing Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)). The problem, he says, is that the Clerk of the Court should have docketed his § 2255 petition in a new case number rather than in the above-captioned criminal case. See id. at PageID.1233.
But that objection will be overruled because Defendant "did not make that argument to Judge Morris." Austin v. Stapleton, No. 1:22-CV-11895, 628 F.Supp.3d 702, 706 (E.D. Mich. Sept. 15, 2022) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).
Yet that argument would fail on the merits too. For one thing, Defendant cites no legal authority requiring a § 2255 petition to be filed under a new case number. Even if he did, he has not stated with particularity how the consolidation might have prejudiced him. Cf. Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir. 2006) ("If Petitioner fails to prove either deficiency or prejudice, then Petitioner's ineffective assistance of counsel claims must fail.") (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); McCormick v. Brzezinski, No. 08-CV-10075, 2009 WL 174129, at *3 (E.D. Mich. Jan. 23, 2009) (denying reconsideration because "no prejudice resulted from th[e purported] error").
3.
Third, Defendant objects that "the Court failed to properly apply Northrop v. Trippett, 265 F.3d 372 (6th Cir. 2001) as advanced in ground one of his motion." ECF No. 193 at PageID.1233-34. In sum, he opposes Judge Morris's refusal to apply Northrop because it involved a § 2254 petition, which he "asserts . . . is frivolous and lack merit" because Northrop was "a decision resulting from the district court in Bay City, Michigan." Id. at PageID.1233.
But that argument lacks merit. As Judge Morris stated, Defendant "waived" that argument because, "[e]ven if [Northrop applied], Petitioner d[id] not indicate what facts support any Fourth Amendment claim, let alone how counsel was alleged to be deficient in failing to raise such claim." ECF No. 192 at PageID.1224-25 (citing United States v. Keller, 498 F.3d 316, 326 (6th Cir. 2007)). Although Defendant's failure to state the factual basis for his claim more likely is "forfeiture" rather than "waiver," it nevertheless means that "he forfeits the argument." See United States v. Montgomery, 998 F.3d 693, 697-98 (6th Cir. 2021). True, he now provides those facts in his objections. See ECF No. 193 at PageID.1233-34. But that objection will be overruled because Defendant "did not make that argument to Judge Morris." Austin v. Stapleton, No. 1:22-CV-11895, 628 F.Supp.3d 702, 706 (E.D. Mich. Sept. 15, 2022) (citing Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)).
4.
Fourth, Defendant objects that "defense counsel misrepresented the consequences of the plea relevant to the decisionmaking process," meaning that "the plea was not intelligent, knowing, and voluntary." ECF No. 193 at PageID.1234 (first citing Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); and then citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).
Although he raised the same exact argument to Judge Morris, see ECF No. 191 at PageID.1215, he "has made no effort to demonstrate a flaw in Judge Morris's analysis," Lewis v. Sole L., PLLC, No. 1:21-CV-12846, 629 F.Supp.3d 731, 735 (E.D. Mich. Sept. 21, 2022). Yet Judge Morris rejected that argument as "contradicted by [Defendant's] sworn statements at the plea hearing." ECF No. 192 at PageID.1225. True, he adds the conclusory assertion that the R & R "is frivolous and lacks merit" because it "provided no documentation in support of the conclusion that [Defendant's] allegations are contradicted by the record." ECF No. 193 at PageID.1234-35. But Defendant's statement is simply not true, as Judge Morris addressed every aspect of that argument with direct citations to the record. See ECF No. 192 at PageID.1225-24. Therefore, this objection will be overruled. Lewis, 629 F.Supp.3d at 735 ("A district court is 'not obligated to reassess the same arguments presented before the Magistrate Judge with no identification of error in the Magistrate Judge's recommendation.' " (citations omitted)).
However, this objection also fails on the merits. Neither the R & R nor the record reveal an error in Judge Morris's finding that Defendant entered his plea knowingly, intelligently, and voluntarily. And, even if there was, Defendant waived his objections in that regard by not filing those objections before this Court adopted the R & R that recommended that this Court accept Defendant's guilty plea, which was the entire reason that his plea was accepted. See ECF No. 79 at PageID.241.
5.
Fifth, Defendant makes the same objection that the R & R is frivolous and lacks merit because it "provides no documentation in support of th[e] contention" that "no harmful error occurred" when Defendant entered the plea agreement knowingly, intelligently, and voluntarily. ECF No. 193 at PageID.1235.
But this fifth objection will be overruled because it is subsumed by the fourth objection. And it fails for the same reasons that the fourth objection failed. See ECF No. 192 at PageID.1225-26; discussion supra Section II.B.4; see also Lewis, 629 F.Supp.3d at 735 ("A district court is 'not obligated to reassess the same arguments presented before the Magistrate Judge with no identification of error in the Magistrate Judge's recommendation.' " (citations omitted)).
6.
Sixth, Defendant raises another objection that reraises an argument that Judge Morris already considered and denied: that the Government was permitted "to introduce and apply sentencing enhancements at the lower preponderance of the evidence standard" rather than "the heightened clear and convincing standard." See ECF No. 193 at PageID.1236 (citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)).
But that objection does not identify any flaw in Judge Morris's analysis. See id. Indeed, it does not make a single substantive citation to or even reference the R & R. See id. Rather, it is directed at the events of his sentencing. Therefore, this objection will be overruled. Lewis, 629 F.Supp.3d at 735 ("A district court is 'not obligated to reassess the same arguments presented before the Magistrate Judge with no identification of error in the Magistrate Judge's recommendation.' " (citations omitted)).
Yet it would fail on the merits too. Defendant's "non-constitutional challenge to his advisory guidelines range suffers from a greater defect: it is not cognizable under § 2255." Snider v. United States, 908 F.3d 183, 189 (6th Cir. 2018). This is because "improperly being consider a career offender for Guidelines purposes is not a manifest miscarriage of justice and so is not cognizable on a § 2255 habeas petition." United States v. Alexander, No. 1:04-CR-00529, 2019 WL 4511521, at *3 (N.D. Ohio Sept. 18, 2019) (citing Bullard v. United States, 937 F.3d 654, 660-61 (6th Cir. 2019)).
And, as Judge Morris stated, the record demonstrates that Defendant was well aware of the potential enhancements that he was facing. ECF No. 192 at PageID.1225. Yet—far from objecting—Defendant "indicated he understood the mandatory minimum and maximum penalty provisions, that he understood the terms of the plea agreement, was not surprised by anything government counsel stated when summarizing the plea agreement, and was satisfied with his attorney's advice." Id. (citations omitted). Because Defendant "did not object to the preponderance of the evidence standard at his resentencing and even appeared to acknowledge this standard," his enhancement argument "is a nonstarter." United States v. Louchart, 579 F. App'x 492, 495 (6th Cir. 2014) (unpublished).
7.
Finally, Defendant again objects that he is entitled to an evidentiary hearing because "the Magistrate has failed to provide documentation of records that would disprove Barker's claims for relief other than the mere statements unsupported by the record or precedent." ECF No. 193 at PageID.1237.
But the final objection will be overruled because it asks this Court "to reassess the same arguments presented before the Magistrate Judge with no identification of error in the Magistrate Judge's recommendation." Lewis, 629 F.Supp.3d at 735 (citations omitted).
And the final objection lacks merit. See ECF No. 192 at PageID.1227-28. As Judge Morris explained, Defendant is not entitled to an evidentiary hearing, because his "allegations 'cannot be accepted as true because they are contradicted by the record.' " Id. (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). Thus, "there is no material factual dispute that a hearing could address." Id. at PageID.1228. Indeed, the record clearly demonstrates that Defendant entered his plea knowingly, intelligently, and voluntarily. See ECF Nos. 177 at PageID.1139-55; 189 at PageID.1195-200. Thus, his § 2255 arguments completely lack merit.
III.
Accordingly, it is ORDERED that Defendant's Objections, ECF No. 193, are OVERRULED.
Further, it is ORDERED that Report and Recommendation, ECF No. 192, is ADOPTED.
Further, it is ORDERED that Defendant's Motion to Vacate Sentence Under § 2255, ECF No. 151, is DENIED WITH PREJUDICE.
Further, it is ORDERED that Defendant's Amended Motion to Vacate Sentence Under § 2255, ECF No. 159, is DENIED WITH PREJUDICE.
Further, it is ORDERED that Defendant's Motion for Counsel, ECF No. 161, is DENIED AS MOOT.
This is a final order and closes the above-captioned case. MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE , SET ASIDE, OR CORRECT SENTENCE and on PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL (ECF Nos. 151, 159, 161)
Patricia T. Morris, United States Magistrate Judge
I. RECOMMENDATION
For the following reasons, IT IS RECOMMENDED that Petitioner's motion to vacate (ECF Nos. 151 and 159) be DENIED and that the civil case be DISMISSED. It is further recommended that Petitioner's motion for appointment of counsel be DENIED. (ECF No. 161.)
II. REPORT
A. Background
On April 8, 2021, David Barker ("Petitioner") pleaded guilty to Count 6 of the Indictment, which charged him with distribution of more than 28 grams of cocaine base under 21 U.S.C. § 841(a) and 841(b)(1)(B)(iii) pursuant to a Rule 11 plea agreement. (ECF No.66.) On July 23, 2021, a judgment entered sentencing Petitioner to 262 months to be followed by eight years of supervised release. (ECF 107.) Petitioner filed his first motion to vacate on June 9, 2022 (ECF No. 151) and an amended motion on July 19, 2022 (ECF No. 159) but then filed a notice of interlocutory appeal on August 1, 2022 (ECF No. 164) and a notice of appeal on August 3, 2022 (ECF No. 166.) The Sixth Circuit dismissed the appeals as untimely. (ECF Nos. 182, 183, and 184.) The motions cited above were referred to the undersigned magistrate judge. (ECF Nos. 155, 165, 186.) Respondent has filed a response. (ECF No. 189). The court has considered all the arguments raised in the briefs.
B. Standards
To prevail on a § 2255 motion " 'a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.' " Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of section 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a section 2255 motion alleging non-constitutional error only by establishing a " 'fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process.' " Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks omitted)). Ineffective assistance of counsel claims "may be brought in a collateral proceeding under § 2255 whether or not the petitioner could have raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003).
Claims of ineffective assistance of counsel are governed by the U.S. Supreme Court's rule pronounced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Court enunciated a two-pronged test that must be satisfied to prevail on an ineffective assistance of counsel claim. First, the movant must show that counsel's performance was deficient in that it fell below an objective standard of reasonableness. Id. at 688. "Constitutionally effective counsel must develop trial strategy in the true sense—not what bears a false label of 'strategy'—based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation." Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007). Second, the movant must show that he was prejudiced by the deficiency to such an extent that the result of the proceeding is unreliable. Strickland, 466 U.S. at 688. It is not enough to show that the alleged error "had some conceivable effect on the outcome of the proceeding." Id. Rather, the movant must show that, but for counsel's errors, the result would have been favorably different. Id. at 693. Failure to make the required showing under either prong of the Strickland test defeats the claim. Id. at 700.
The Supreme Court has explained that "[t]he essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S. 365, 374 (1986). This language highlights the Supreme Court's consistent view that the Sixth Amendment right to counsel is a safeguard to ensure fairness in the trial process.
In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Court clarified the meaning of "prejudice" under the Strickland standard, explaining:
Under our decisions, a criminal defendant alleging prejudice must show 'that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' . . . Thus, an analysis focusing solely on the mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.Lockhart, 506 U.S. at 369 (citations omitted).
Where a claim for ineffective assistance of counsel is brought following a guilty plea, the "prejudice requirement 'focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.' " Utley v. United States, 2016 WL 337750, at *6 (E.D. Mich. Jan. 28, 2016) (Lawson, J.) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). " 'In other words, . . . the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Id. (citations omitted). However, the Supreme Court has explained that " 'Hill does not, however, provide the sole means for demonstrating prejudice' . . . . [P]rejudice may lie where a petitioner demonstrates that counsel's deficient performance infected his decisionmaking process, and thus undermines confidence in the outcome of the plea process." Rodriguez-Penton v. United States, 905 F.3d 481, 487-8 (6th Cir. 2018) (quoting Missouri v. Frye, 566 U.S. 134, 141-2 (2012) and citing Lee v. United States, 137 S. Ct. 1958, 1967 (2017)).
C. Analysis and Conclusions
Petitioner argues that trial counsel was ineffective for: (1) failing to challenge the indictment and failing to file pretrial motions challenging his arrest and violation of the Fourth Amendment (ECF No. 151, 159); (2) misrepresenting the consequence of his plea because he was promised his sentence would be for 120 months but he was actually sentenced to 262 months because of enhancements that were not previously discussed with him (ECF No. 151, 159); and (3) failing to object to career offender and aiding and abetting enhancements. (ECF No. 159.) Petitioner contends he would not have entered into the plea agreement had he known he could be sentenced higher than 120 months. (ECF No. 151 PageID.1038, 159 PageID.1068.)
As to Petitioner's first ground, although Petitioner claims his attorney was ineffective for not challenging the indictment and his arrest, he does not specify what actions or omissions were unconstitutional. He cites Rule 41(h) which governs motions to suppress but again does not specify what actions would give rise to a motion to suppress. He also cites Northrop v. Trippett, 255 F.3d 372 (6th Cir. 2001). Northrop is a state habeas claim case brought under 2254 so it has no application here. Even if it did, Petitioner does not indicate what facts support any Fourth Amendment claim, let alone how counsel was alleged to be deficient in failing to raise such claim. Since this argument is devoid of factual allegations or citations to the record, it is deemed waived. United States v. Keller, 498 F.3d 316, 326 (6th Cir. 2007) ("issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.")
As to Petitioner's second and third grounds, his allegations are contradicted by his sworn statements at the plea hearing. Although Petitioner claims he was unaware of sentencing enhancements and was promised his sentence would be for 120 months, there was a notice of penalty enhancement filed on February 11, 2021 (ECF No. 53) and the Rule 11 plea agreement provided that the term of imprisonment required a mandatory minimum sentence of 120 months as to Count 6, and further delineated factual stipulations for sentencing guideline purposes including career offender guideline provisions and the amount of cocaine base involved which set the base offense level. (ECF No. 66, PageID.18. 187-188.) In addition, during the plea colloquy, Petitioner indicated he understood the mandatory minimum and maximum penalty provisions (ECF No. 177, PageID.1139-1140), that he understood the terms of the plea agreement, was not surprised by anything government counsel stated when summarizing the plea agreement, and was satisfied with his attorney's advice. (ECF No. 177. PageID.1149.) Petitioner promised that if he had any questions whatsoever about what could possibly happen to him because of the terms of the plea agreement that he would ask them during the plea hearing. (ECF No. 177, at 1151-1152.) Petitioner also indicated that no one had made any promises to him other than those stated in the plea agreement and specifically that no one had promised him that Judge Ludington would sentence him to any certain number of months. (ECF No. 177. PageID.1154-1155.) Government counsel thoroughly quoted from the plea taking transcript and defeated any potential argument challenging the validity of the plea taking process. (ECF No. 189, PageID.1195-1200.)
Where, as here, the court "has scrupulously followed the required procedure [under Rule 11], the defendant is bound by his statements in response to the Court's inquiry." United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993). Since courts must be able to rely on a defendant's statements during a plea colloquy, "allegations in a § 2255 motion that directly contradict the petitioner's sworn statements during a properly conducted Rule 11 colloquy are always 'palpably incredible' and 'patently frivolous or false.' " Bennett v. United States, Nos. 2:10-CR-116, 2:14-CV-216, 2017 WL 160896, (E.D. Tenn. Jan. 13 2017) (citations omitted).
I therefore suggest that Petitioner has not alleged any cognizable claims and that his motion to vacate sentence (ECF Nos.151, 159) should be denied. I further recommend his motion for appointment of counsel be denied as moot. (ECF No. 161.)
Even if the court considered the merits of his request for appointed counsel, the result would be the same. Although federal district courts have the discretion under 28 U.S.C. § 1915(e)(1) to "request an attorney to represent any person unable to afford counsel," there is no constitutional right to court-appointed counsel in a civil case. Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003); Abdur-Rahman v. Michigan Dep't of Corrections, 65 F.3d 489, 492 (6th Cir. 1995). The decision rests in the district court's sound discretion and will be overturned only if it impinges fundamental due process rights and amounts to an abuse of discretion. Reneer v. Sewell, 975 F.2d 258, 261 (6th Cir. 1992); see also Richmond v. Settles, 450 F. App'x 448, 452 (6th Cir. 2011).
The appointment of counsel is only justified by exceptional circumstances. Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). In determining whether exceptional circumstances are present the court must consider the nature of the case, the complexity of the factual and legal issues involved, and the plaintiffs' ability to represent themselves. Id. at 606; see also Shavers v. Bergh, 516 F. App'x 568, 571 (6th Cir. 2013); Garrison v. Michigan Dep't of Corrections, 333 F. App'x 914, 917-18 (6th Cir. 2009). The complexity of the case and the plaintiffs' ability to handle it are "separate and distinct considerations." Kensu v. Rapelje, No. 12-11877, 2014 WL 585328, at *2 (E.D. Mich. Feb. 14, 2014). If the claims are frivolous or have "extremely slim" chances of success, the court should not appoint counsel. Richmond, 450 F. App'x at 452. Here, Petitioner has had no difficulty in filing motions on his own or putting forth his claims; unfortunately, for petitioner, his claims simply lack merit.
D. Evidentiary Hearing
Section 2255 states that
[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.28 U.S.C. § 2255(b). The Sixth Circuit has "observed that a Section 2255 petitioner's burden for establishing an entitlement to an evidentiary hearing is relatively light." Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003) (citation omitted). "In reviewing a § 2255 motion in which a factual dispute arises, 'the habeas court must hold an evidentiary hearing to determine the truth of the petitioner's claims.' " Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007).
On the other hand, no hearing is required if the motion's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation omitted). Additionally,
The words 'grant a prompt hearing' are not magic words requiring a district judge, who is fully familiar with the circumstances under which a guilty plea was made, to duplicate procedures and conduct a hearing to resolve alleged fact issues which can and should be decided on the record that already exists.United States v. Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993).
In the instant case, there is no material factual dispute that a hearing could address. I therefore suggest that Petitioner is not entitled to a hearing on the allegations raised in his motion.
E. Conclusion
For the reasons stated above, I recommend the motions to vacate (ECF No. 151, 159) be DENIED and any civil case DISMISSED. I further recommend that his motion for appointment of counsel (ECF No. 161) also be denied.
III. REVIEW
Rule 72(b)(2) of the Federal Rules of Civil Procedure states that "[w]ithin 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy." Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise others, will not preserve all the objections a party may have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). According to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge.
Any objections must be labeled as "Objection No. 1," "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.