Jennings v. USA
Filing
1
MEMORANDUM OPINION & ORDER: 1) Magistrate Judge's Report and Recommendation 106 is ADOPTED and INCORPORATED by reference; 2) Jennings' motion to vacate his sentence 90 is DENIED; 3) Certificate of Appealability shall not issue because Jennings has not made a substantial showing of the denial of any substantive constitutional right; 4) This habeas proceeding shall be DISMISSED and STRICKEN from the docket. Signed by Judge Danny C. Reeves on 6/14/2011.(ECO)cc: COR Modified filed date from 6/15/2011 to 6/14/2011 on 6/15/2011 (ECO).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
(at Covington)
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
V.
DAVID JENNINGS,
Defendant/Petitioner.
)
)
)
)
)
)
)
)
)
Criminal Action No. 2: 06-79-DCR
Civil Action No. 2: 11-7157-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
This matter is pending for consideration of Defendant/Petitioner David Jennings’ pro se
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No.
90] Consistent with local practice, this matter was referred to United States Magistrate Judge
J. Gregory Wehrman for consideration pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate
udge filed his Report and Recommendation on May 25, 2011. [Record No. 106] Based on his
review of the record and applicable law, the Magistrate Judge recommended that Jennings’
motion be denied. Neither party has filed objections to the Magistrate Judge’s recommendations.
Although this Court must make a de novo determination of those portions of the
Magistrate Judge’s recommendations to which objections are made, 28 U.S.C. § 636(b)(1)(c),
“[i]t does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party objects
to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to
file objections to a magistrate judge’s proposed findings of fact and recommendation waives the
-1-
right to appeal. See id. at 147–48; Wright v. Holbrook, 794 F.2d 1152, 1154–55 (6th Cir. 1986).
In this case, Jennings has not objected to the magistrate judge’s findings. Nevertheless, having
examined the record and having made a de novo determination, the Court is in agreement with
the magistrate judge’s recommendations.
In 2006, Jennings pleaded guilty to distributing cocaine and using property subject to
forfeiture. [Record No. 19] After his first sentence was reversed on appeal, the case was
reassigned to the undersigned. [Record Nos. 57, 58] In November 2008, the Court re-sentenced
Jennings to a term of imprisonment of 120 months. [Record No. 72] While the sentence was
significantly higher than his guideline range of 37–46 months, the Sixth Circuit affirmed. See
United States v. Jennings, 407 F. App’x 20 (6th Cir. 2011). On February 3, 2011, Jennings filed
the present motion to vacate pursuant to 28 U.S.C. § 2255. [Record No. 90] The United States
moved for a more definite statement [Record No. 95] which the Court granted. [Record No. 96]
On March 28, 2011, Jennings filed a more complete petition [Record No. 102].
Jennings’ petition centers on the claim that he received ineffective assistance of counsel
during the sentencing phase of his trial and on direct appeal. Jennings believes that his sentence
of 120 months of incarceration was both procedurally and substantially unreasonable, and that
Counsel’s failure to either: (i) object to the sentence during sentencing; (ii) object during the
Bostic inquiry; or (iii) sufficiently raise the issue on direct appeal, constituted ineffective
assistance of counsel. Jennings contentions are without merit.
-2-
First, Jennings raised the underlying sentencing issue on direct appeal and was
unsuccessful. See Jennings, 407 F. App’x at 21–22. The Sixth Circuit explained that Jennings’
sentence was neither procedurally nor substantively unreasonable. Id. As that court noted:
Also unavailing is Jennings’ contention that the district court failed to explain its
variance from the guidelines. At the hearing, the court thoroughly explained its
reasons, noting (1) “the seriousness of the offense”—“drug-trafficking . . . for a
number of years,” (2) the need “to promote respect for the law” because “the
sentences that have been imposed previously for [Jennings’] drug activities have
not deterred him from criminal conduct,” and (3) the court’s obligation “to
provide for a just punishment” and “to protect the public” from Jennings’ future
crimes given his history of recidivism. R.81 at 13-14.
....
Jennings’ final objection—that his sentence is substantively unreasonable—fails
in light of the legitimate grounds given for this 120-month sentence and in light
of the considerable discretion given district courts in fashioning a sentence. See
Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007).
Case law requires us to consider the extent of a variance—here, roughly three
times the guidelines range—in relation to the reasons given for it. See id. at 47;
United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008). Jennings,
however, offers no reason why, based on all of the § 3553(a) factors, his ten-year
sentence is too long. See United States v. Vowell, 516 F.3d 503, 510-11 (6th Cir.
2008); United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2007). Nor can we
find one ourselves. . . . The court did not abuse its discretion in imposing this
sentence.
Id. (alteration in original).
In light of the Sixth Circuit’s holding that Jennings’ sentence was neither procedurally
nor substantively unreasonable, Jennings’ counsel was not deficient for failing to object on such
grounds. Failure to raise meritless arguments does not constitute ineffective assistance of
counsel. See, e.g., Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (“Counsel was
not required to raise meritless arguments to avoid a charge of ineffective assistance of counsel.”).
Thus, Jennings’ counsel’s decision not to object to the sentence either during its announcement
-3-
or during the Bostic inquiry was not deficient. Even if it was, in light of the Sixth Circuit’s
holding, no prejudice resulted. Therefore, Jennings’ claim fails both prongs of the well-settled
test for ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984) (holding that,
to succeed in an ineffective-assistance claim, a defendant must show both deficient performance
and that the deficient performance prejudiced the defense).
In conclusion, Jennings has failed to show that his counsel was ineffective. Jennings
continues to believe that his 120-month sentence was both procedurally and substantially flawed,
but both this Court and the Sixth Circuit have found otherwise. Nothing his counsel could have
done could change that reality. Therefore, Jennings has failed to meet his burden of proving
inadequate assistance of counsel and his § 2255 motion will be denied. Further, Jennings has
not shown that a Certificate of Appealability should issue.1 Accordingly, it is hereby
ORDERED as follows:
1.
The Magistrate Judge’s Report and Recommendation [Record No. 106] is
ADOPTED and INCORPORATED by reference.
2.
Jennings’ motion to vacate his sentence pursuant to 28 U.S.C. § 2255 [Record No.
90] is DENIED.
1
A Certificate of Appealability may be issued “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite “substantial showing
of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2), “a petitioner who has been denied relief
in a district court ‘must demonstrate that the issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to
proceed further.’” Lozada v. Deeds, 498 U.S. 430, 432 (1991) (emphasis and brackets in original)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). In the present case, Jennings has not made
a substantial showing of a denial of a constitutional right. Likewise, he has not demonstrated that the
issues he now seeks to raise are debatable among jurists of reason or that the questions are adequate to
deserve encouragement to proceed further.
-4-
3.
A Certificate of Appealability shall not issue because Jennings has not made a
substantial showing of the denial of any substantive constitutional right.
4.
This habeas proceeding shall be DISMISSED and STRICKEN from the docket.
This 14th day of June, 2011.
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?