SUPPLEMENTAL REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court on Defendant Thomas' Objections (ECF No. 84) to the Magistrate Judge's Report and Recommendations (ECF No. 82) recommending dismissal of Defendant's Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 80). District Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 85).

Thomas's Motion to Amend (ECF No. 83) has been granted so that the two Grounds for Relief are

(Motion, ECF No. 80, PageID 401-02); (Motion to Amend, ECF No. 83, PageID 421.)

ANALYSIS

Objection One

Thomas first objects that the court did not grant his Motion for Extension of Time to file a memorandum in support of his § 2255 Motion. He claims he is entitled to the extension under Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Supreme Court held in Haines that the allegations of a complaint drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by lawyers, and will be liberally construed. However, this laxity does not apply to straightforward scheduling requirements which are as understandable by a layman as by a lawyer. Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991). Pro se litigants are required to adhere to basic pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Out of a sense of fairness for other parties who choose counsel and must bear the risk of their attorney's mistakes, no special treatment is to be afforded to ordinary civil litigants who proceed pro se. Brock v. Hendershott, 840 F.2d 339, 342-43 (6th Cir. 1988). "Where . . . a pro se litigant fails to comply with an easily understood court-imposed deadline, there is no basis for treating that party more generously than a represented litigant." Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996).

The Rules Governing § 2255 Cases neither require nor provide for filing a memorandum in support of the motion to vacate, although this Court routinely accepts such memoranda when they are tendered with the motion. But Defendant had over nine months from the time his conviction became final to prepare his Motion to Vacate.

Objection Two

The Magistrate Judge construed the First Ground for Relief as being that trial counsel did not tell Thomas that his maximum exposure for supervised release was ten years (Report, ECF No. 82, PageID 414). Thomas correctly points out in the Objections that his claim is that trial counsel told him he would only be exposed to four years of supervised release as recommended by the Sentencing Guidelines.

The Report assumes the truth of Thomas's statement about what his attorney, Aaron Durden, said to him about supervised release. Id. at PageID 416. Even assuming that is true, Thomas has not established the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), because Judge Rice recited the correct term in the plea colloquy and the correct term of four years to life is spelled out in the Plea Agreement (ECF No. 65, PageID 324, ¶ 3).

Nothing in the Objections attempts to show any prejudice from the alleged incorrect advice. Most importantly, Thomas does not claim he would have turned down the plea bargain and gone to trial if he had heard the longer term from his lawyer. Thomas was convicted of possession with intent to distribute 100 grams or more of heroin, an offense calling for five to forty years imprisonment under the statute. By pleading guilty, Thomas avoided possible conviction on Count One, conspiracy to distribute a kilogram or more of heroin, a charge carrying a maximum sentence of twenty years. Within the sentencing range to which his plea exposed him, he obtained an agreed sentencing range of sixty to eighty-seven months or five to seven and one-quarter years. The Sentencing Guidelines called for a sentence of between 97 and 121 months, so the plea bargain brought Thomas to ten months under the Guidelines minimum.

Objection Three

In his Third Objection, Thomas requests the Ground for Relief pled in his Motion to Amend be substituted for Ground Two as originally pled and the Court has approved the amendment.

In his Second Ground for Relief as now before the Court, Thomas claims he received ineffective assistance of trial counsel when his attorney did not object to Judge Rice's imposition of a ten-year term of supervised release instead of the four years recommended by the Probation Department.

Here again the standard is that adopted in Strickland. Even assuming it was deficient performance for Mr. Durden not to object, Thomas has failed to show any prejudice. The term of ten years supervised release is certainly within the statutorily authorized term. Thomas has an extraordinary prior criminal record, beginning with theft at age thirteen and including ten prior drug-related convictions such that the Guideline sentencing range may not properly reflect the prior record. Supervising Thomas for ten years is surely substantively reasonable given his prior drug involvement and present scourge of heroin in this community. It is very unlikely that an objection on Mr. Durden's part would have changed Judge Rice's mind on this point or that the Sixth Circuit would have reversed on this point.

Conclusion

Having reconsidered the case in light of the Objections and amendment, the Magistrate Judge again recommends that the Motion to Vacate be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.