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U.S. v. Phillips, 6:10-cr-14-GFVT-HAI-1 (2016)

Court: District Court, E.D. Kentucky Number: infdco20160926b73 Visitors: 6
Filed: Sep. 23, 2016
Latest Update: Sep. 23, 2016
Summary: ORDER GREGORY F. VAN TATENHOVE , District Judge . This matter is before the Court pending review of the Recommended Disposition of United States Magistrate Judge Hanly A. Ingram, filed on July 5, 2016. [R. 92.] On June 24, 2016, this Court construed a letter from Defendant Kenneth Phillips, which inquired about a possible sentence reduction pursuant to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2251 (2015), and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), as a m
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ORDER

This matter is before the Court pending review of the Recommended Disposition of United States Magistrate Judge Hanly A. Ingram, filed on July 5, 2016. [R. 92.] On June 24, 2016, this Court construed a letter from Defendant Kenneth Phillips, which inquired about a possible sentence reduction pursuant to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2251 (2015), and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), as a motion to vacate his sentence under 28 U.S.C. § 2255. Consistent with local practice, Magistrate Judge Ingram's Recommended Disposition addresses Mr. Phillips's construed § 2255 habeas petition.

After considering the record, Judge Ingram determined that, first, Mr. Phillips's motion is time-barred, and, second, Mr. Phillips is not entitled to the relief he seeks pursuant to the Johnson decision. Specifically, Judge Ingram explained that Mr. Phillips qualifies as a career offender based on his prior offenses classified under United States Sentencing Guidelines §4B1.2(a)(2) and §4B1.2(a)(1). Mr. Phillips was not deemed a career offender by operation of the career offender enhancement's residual clause; thus, the Johnson, Welch, and United States v. Pawlak, ___ F.3d ___, No. 15-3566, 2016 WL 2802723 (6th Cir. May 13, 2016), decisions have no impact on his sentence. [See R. 92 at 4-6.]

In order to receive de novo review by this Court, any objection to a 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 is not permitted, since it duplicates the magistrate's efforts and wastes judicial economy. Howard v. Sec'y of Health and 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 recommended disposition are also barred from appealing a district court's order adopting that recommended disposition. United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

As of this date, neither Mr. Phillips nor the Government has filed objections to Judge Ingram's Recommended Disposition or sought an extension of time to do so. Rather than filing objections, Mr. Phillips has written two letters requesting the appointment of counsel and inquiring about the status of his § 2255 petition. [R. 93; R. 94.] Even under the more lenient standard applied to pro se defendants, see Franklin v. Rose, 765 F.2d 82, 84-85 (6th Cir. 1985), these letters cannot be considered specific objections. To the extent Mr. Phillips's two letters may be construed as motions for the appointment of counsel, there is no right to counsel for post-conviction habeas proceedings. See, e.g., Abdus-Samand v. Bell, 420 F.3d 614, 632 (6th Cir. 2005). Requests for appointment of counsel in habeas cases are ordinarily considered under 18 U.S.C. § 3006A; however, the Court has wide discretion over the decision based on the interests of justice and the requirements of due process. See 18 U.S.C. § 3006A(a)(2)(B); 28 U.S.C. § 2255(g). Having reviewed Mr. Phillips's requests, the Court does not believe that counsel is needed to assist with the determination of whether he is entitled to relief under Johnson, as Magistrate Judge Ingram has already determined that Mr. Phillips was not sentenced pursuant to the career offender enhancement's residual clause.

Although the Court concludes that neither party has filed objections to the Recommended Disposition within the appropriate time period, the Court has still considered the record and ultimately agrees with the Magistrate Judge's recommendation. Furthermore, the Court declines to issue a certificate of appealability. The Court determines that reasonable jurists would not find the denial of Phillips's § 2255 motion debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Accordingly, and the Court being sufficiently advised, it is hereby ORDERED that:

1. The Magistrate's Recommended Disposition [R. 92] as to Kenneth Dale Phillips is ADOPTED as and for the Opinion of the Court;

2. Mr. Phillips's § 2255 petition is DENIED;

3. A Certificate of Appealability is DENIED; and

4. JUDGMENT is entered in favor of the United States and Civil No. 6:10-cv-00122-GFVT-HAI will be STRICKEN from the Court's active docket.

Source:  Leagle

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