Monk v. USA
Filing
3
MEMORANDUM OPINION AND ORDER ON OBJECTIONS TO MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION signed by Judge Claria Horn Boom on 7/2/2020 as to Marvin Duane Monk (1). The Report and Recommendation [R. 110] is ADOPTED as the opinion of the Court. M onk's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [R. 64] is DENIED and DISMISSED with prejudice. No certificate of appealability will issue. A separate Judgment shall issue contemporaneously with this Order. cc: Counsel, Defendant (ALS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARVIN DUANE MONK,
)
)
) Criminal Action No. 3:12-CR-120-CHB-CHL
Civil Action No. 3:15-CV-126-CHB-CHL
)
)
)
MEMORANDUM OPINION AND
)
ORDER ON OBJECTIONS TO
)
MAGISTRATE JUDGE’S
)
REPORT AND RECOMMENDATION
)
Movant/Defendant,
v.
UNITED STATES OF AMERICA,
Respondent/Plaintiff.
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This matter is before the Court on Movant/Defendant Marvin Duane Monk’s Objections
[R. 116] to the Report and Recommendation of United States Magistrate Judge Colin H. Lindsay
[R. 110], addressing the Motion to Vacate, Set Aside, or Correct Sentence [R. 64] and
supplemental memoranda [R. 83; R. 100; R. 104] filed by Monk. For the following reasons, the
Court will overrule Monk’s objections and adopt the Magistrate Judge’s Report and
Recommendation.
I.
Background Facts
On August 19, 2012, Sandra Monk discovered that her then-husband Monk had been
engaged in sexual relations with her then-seventeen-year-old daughter (“Jane Doe”), Monk’s
stepdaughter. [R. 1 Affidavit p. 1; R. 85 Order p. 2] Sandra asked Monk to leave their residence
in Louisville, Kentucky. [Id.] Monk left the residence and moved into a motel in Clark County,
Indiana, which is across the Ohio River from Louisville. [Id.]
Following Monk’s departure, Sandra and her daughter argued. [Id.] Following the
argument, Jane Doe left the residence without telling Sandra Monk where she was going. [Id.]
On August 20, 2012, Sandra Monk contacted the Louisville Metro Police Department and
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filed a missing person’s report for Jane Doe. [R. 1 Affidavit pp. 1–2; R. 85 Order p. 2] Sandra
Monk also filed for and obtained an Emergency Protection Order (EPO) against Monk in
Jefferson County, Kentucky. [Id.] The EPO directed that Monk have no contact with Sandra
Monk or his stepdaughter Jane Doe. [Id.]
On August 21, 2012, Sandra learned that Monk and Jane Doe were staying together in the
Star Motel in Clarksville, Indiana. [R. 1 Affidavit p. 2; R. 85 Order p. 2] Sandra contacted the
Sheriff’s Department in Clark County, Indiana and informed them of the situation. [Id.] Officers
were dispatched to the motel and found Monk and Jane Doe in room 115. [Id.] To the officers
on the scene, it was clear that Monk and Jane Doe had been staying in the room together and
sharing a bed. [Id.] The officers on the scene arrested Monk for violating an EPO and
contributing to the delinquency of a minor. [Id.] The officers transported Jane Doe to a juvenile
detention center for being a runaway. [Id.]
Upon learning that a sexual abuse incident may have occurred, Clark County Sheriff’s
deputy Racheal Lee interviewed Jane Doe. [Id.] Deputy Lee conducted the interview at the
detention center in Clark County. [Id.] During the interview, Jane Doe disclosed that she and
Monk had been in a sexual relationship since December 2011. [Id.] Jane Doe also indicated that
a sex tape of her and Monk was in the motel room. [Id.]
On August 22, 2012, Deputy Lee interviewed Monk at the Clark County Sheriff’s Office.
[Id.] After being advised of his constitutional rights and waiving those rights, Monk agreed to be
interviewed by Deputy Lee. [Id.] Monk stated that he learned that Jane Doe had left their
residence in Louisville and he went to find her. [R. 1 Affidavit p. 2; R. 85 Order pp. 2–3] Monk
admitted that he found Jane Doe and drove her to the Star Motel in Clarksville, Indiana. [Id.]
Monk admitted engaging in a sexual relationship with Jane Doe, indicating that most of their
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sexual contact occurred in their residence in Kentucky. [Id.] When asked about a sex tape of him
and Jane Doe, Monk admitted that one did exist, but he claimed to have gotten rid of it. [Id.]
Monk also admitted that he and Jane Doe had exchanged text messages and pictures in which
they expressed their feelings for one another. [Id.]
On August 22, 2012, the Clark County Sheriff’s Department executed a search warrant
on room 115 of the Star Motel. [R. 1 Affidavit p. 2; R. 85 Order p. 3] Some of the items seized
included: an 8mm camcorder, a diary or notebook containing letters and handwritten notes, a
Blackberry mobile phone, and various 8-millimeter video cassettes. [Id.] One of the 8-millimeter
cassettes seized from the hotel room contained footage of Monk and Jane Doe engaging in
various sexual activities. [Id.] The video recording is approximately one hour and twenty
minutes in length. [Id.] Based on the description of the setting/items in the video tape, Sandra
Monk indicated the tape had been made in her bedroom of the residence in Louisville, Kentucky.
[Id.]
A search warrant was also executed on Monk’s iPhone which was located in the Clark
County Jail. [Id.] Monk’s iPhone contained numerous text messages between Monk and Jane
Doe that were of a graphic sexual nature and included images of their genitals. [R. 1 Affidavit p.
3; R. 85 Order p. 3]
On September 6, 2012, the Court issued a criminal complaint and arrest warrant charging
Monk with coercion and enticement of a minor to engage in sexual activity in violation of 18
U.S.C. § 2422(b) and coercion and enticement of a minor to engage in sexually explicit conduct
for purposes of producing child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e).
[R. 1; R. 3] On October 2, 2012, a federal grand jury indicted Monk on one count of violating 18
U.S.C. § 2422(b) and one count of violating 18 U.S.C. §§ 2251(a) and 2251(e). [R. 13] The
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Court ordered Monk detained pending trial. [R. 12] At his arraignment, Monk entered a plea of
not guilty and the Court ordered him to have no direct or indirect contact with Sandra Monk or
Jane Doe. [R. 20] Monk was represented by retained counsel, J. Bart McMahon. [R. 19]
Despite the Court’s order to cease contact with Jane Doe, Monk continued to contact Jane
Doe by writing letters to her. [R. 30 SEALED] Monk sent the letters to his daughter who then
forwarded them to Jane Doe. [Id.] The United States discovered what Monk was doing and
moved to restrict his mail while in custody due to his violation of the Court’s order that he not
contact Jane Doe. [R. 28] Counsel for the United States also advised defense counsel that no
plea offer would be made because of Monk’s violation of the Court’s no contact order. [R. 79 p.
9 n.1] The District Judge granted the United States’ motion and directed the Oldham County Jail
to restrict all of Monk’s incoming and outgoing mail to matters mailed to and from his attorney
or the Court. [R. 32]
Following several continuances, a jury trial was scheduled for October 15, 2013. [R. 22;
R. 25; R. 27] The trial date was subsequently remanded and a change of plea hearing was
scheduled for September 27, 2013. [R. 33]
On September 27, 2013, Monk, with the advice of counsel, entered an open plea to both
counts in the indictment. [R. 34] During the change of plea hearing, the Court informed Monk of
the rights and requirements set forth in Fed. R. Crim. P. 11(b)(1)(A) through (N) and determined
that he understood each of them. [Id.] The Court also determined that Monk’s plea was
voluntary and not the result of force, threats, or promises. [Id.] The Court advised Monk that he
would not have the right to withdraw the plea at a later date, but he could make such a request to
the Court. [Id.] The Court found, as required by Rule 11(b)(3), that there was a factual basis for
Monk’s guilty plea and entered and accepted the plea as to Counts 1 and 2. [Id.] On January 14,
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2014, the District Judge sentenced Monk to a period of 240 months imprisonment, to be
followed by 12 years of supervised release. [R. 43] Monk did not file a notice of appeal.
On February 3, 2015, Monk filed his § 2255 motion which challenges his conviction and
sentence by raising 52 grounds for relief. [R. 64] The District Judge referred the matter to
Magistrate Judge Colin H. Lindsay pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) for rulings on
all non-dispositive motions; for appropriate hearings, if necessary; and for findings of fact and
recommendations on any dispositive matter. [R. 71]
The United States filed a response to the § 2255 motion. [R. 79] Monk filed a reply [R.
81] and with leave of Court [R. 82], he filed a supplemental memorandum. [R. 83] After
considering the arguments of the parties and the record, the Magistrate Judge ordered an
evidentiary hearing limited to the following issues: (1) the absence of a direct appeal; (2) defense
counsel’s purported failure to discuss with Monk going to trial as an alternative to an open plea;
(3) defense counsel’s decision not to pursue motions for suppression of evidence based on
possible Fourth Amendment violations; and (4) Monk’s claim that he did not receive a copy of
the PSR until the date of sentencing. [R. 85] Additionally, the Magistrate Judge appointed
counsel to represent Monk for purposes of preparation for and participation in the evidentiary
hearing and any post-hearing briefing required by the Court. [Id.]
At the July 24, 2017 evidentiary hearing, Monk called as witnesses his trial counsel
McMahon and himself as well as presented seven exhibits. [R. 95 Hearing Transcript pp. 5, 48]
The United States cross-examined both witnesses and presented six exhibits. [Id. at pp. 25, 57]
In compliance with a post-hearing order [R. 93], after the official transcript was filed, Monk filed
a post-hearing memorandum, to which the United States filed a response, and Monk filed a reply.
[R. 100; R. 103; R. 104]
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Magistrate Judge Lindsay issued a Report and Recommendation addressing all fifty-two
grounds for relief asserted by Monk. [R. 110] Magistrate Judge Lindsay recommended that
Monk’s § 2255 motion [R. 64] be denied and a Certificate of Appealability be denied as to all
claims advanced by Monk. [R. 110] Monk has made three objections. [R. 116] This matter is
ripe for review.
II.
Standard of Review
A. Objections
Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2), a petitioner
has fourteen days after service to register any objections to the Magistrate Judge’s Report and
Recommendation or else waive his rights to appeal. When no objections are made, 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, 151 (1985). Parties who fail to object to a
Magistrate Judge’s Report and Recommendation are also barred from appealing a district court’s
order adopting that Report and Recommendation. United States v. White, 874 F.3d 490, 495 (6th
Cir. 2017); United States v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981).
For properly made objections, non-dispositive matters are reviewed under a “limited”
standard of review: the district court “must . . . modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir.
1993); Fed. R. Civ. P. 72(a). Dispositive matters, however, are reviewed de novo if a party
makes proper objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). In order to receive de
novo review by this Court, any objection to the 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.
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981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th
Cir. 1997)). A general objection that fails to identify specific factual or legal issues from the
Recommendation, however, is not permitted, since it duplicates the magistrate’s efforts and
wastes judicial economy. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991). The Court “may accept, reject, or modify, in whole or in part, the findings and
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b)(3); Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). 1
B. Applicable Law
Monk’s objections concern three claims of ineffective assistance of counsel. See [R. 116
pp. 6–19] To establish ineffective assistance of trial counsel, a movant must show deficient
performance and resulting prejudice. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009);
Strickland v. Washington, 466 U.S. 668, 687 (1984).
The performance inquiry requires the movant to “show that counsel’s representation fell
below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In making this
assessment, the Court “must judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. Further, the
Court must determine whether, in light of all the circumstances, counsel’s challenged conduct
falls outside the wide range of professionally competent assistance. Id. In doing so, the Court
“should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is
to make the adversarial testing process work in the particular case.” Id. Additionally, the Court
To the extent his argument uses the term “overrule” [R. 116 pp. 6, 19], Monk is mistaken. Magistrate Judge Lindsay
has not made a ruling. Rather, he has made a recommended disposition along with proposed findings of fact in
compliance with 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b)(1). [R. 110]. Thus, the Court may accept, reject,
or modify the recommended disposition. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
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“should recognize that counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
The Supreme Court’s discussion about resulting prejudice begins with the observation
“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691. Thus,
under the prejudice inquiry, the movant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. In guilty plea cases, to establish prejudice the movant “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.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The Court need not conduct the two-prong inquiry in the order identified above or even
address both parts of the test if the movant makes an insufficient showing on one. Strickland, 466
U.S. at 697. For example, if the Court determines the movant fails to satisfy the prejudice prong
then it need not determine whether counsel’s performance was deficient. Id.
III.
Discussion
Monk asserts Magistrate Judge Lindsay’s findings support his claim that McMahon was
inexperienced and unprepared to defend in this case. [R. 116 p. 6] Monk contends that in this
case McMahon interviewed no witnesses, filed no motions other than to continue, and secretly
agreed with the prosecutor to “work on” Monk to get him to plead guilty. 2 [Id.] More
Although Monk does not specifically base one of his objections on McMahon’s statement that he would “work on”
Monk, the Court agrees with the Report and Recommendation’s conclusion that the totality of the circumstances
surrounding this email suggests that McMahon meant that he was going to speak with Monk about his case and the
options available to him given the evidence, not that McMahon endeavored to persuade Monk to enter a guilty plea.
[R. 110 pp. 29–30]
2
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specifically, Monk objects to Magistrate Judge Lindsay’s recommendations regarding three
grounds for relief based on ineffective assistance of counsel: (1) counsel’s failure to perform any
witness interviews or other pretrial preparation (Grounds 6 and 7); (2) counsel’s failure to file a
motion or motions to suppress (Grounds 13–22 and 24); and (3) counsel’s failure to file a direct
appeal (Grounds 1 and 2). [R. 116 Objections p. 6; R. 110 Report and Recommendation pp. 26–
28, 34–43, 18–23]
A. McMahon failed to perform any witness interviews or other pretrial
preparation.
In his objection, Monk argues the Report incorrectly found that McMahon’s failure to
investigate does not fall below the objective standard of reasonableness. [R. 116 pp. 7–10, 18]
Monk contends the holdings in Towns v. Smith, 395 F.3d 251, 258–59 (6th Cir. 2005) and United
States v. Arny, 137 F. Supp. 3d 981, 983–96 (E.D. Ky. 2015), aff’d, 831 F.3d 725 (6th Cir. 2016)
are controlling here and require a determination that McMahon’s failure to conduct interviews of
Sandra Monk and Jane Doe was not objectively reasonable. [Id.] Monk also argues that the
Report does not find there was a strategic reason for declining to interview Sandra Monk or Jane
Doe, and McMahon did not offer any. [Id.] Monk asserts they were primary witnesses who
could have provided useful information for his defense. [Id.] Monk posits that if McMahon
questioned how Sandra Monk learned that he and Jane Doe were staying at the motel in
Clarksville, Indiana, he might have discovered information useful to undermine the police’s
alleged probable cause to enter and search the motel room. [Id.] Monk reasons if the evidence
found in the motel room had been suppressed, the government would have lacked the principal
evidence needed to prosecute the child pornography charge. [Id.] Monk argues the Report’s
attempt to excuse McMahon’s failure to conduct witness interviews is inapt because strong
evidence does not relieve counsel of his obligation of diligence, and the government had already
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refused to enter a plea agreement. [Id.]
Monk’s Motion to Vacate alleged that McMahon was ineffective in failing to fulfill his
discovery obligations (Ground 6) and to investigate and discuss possible defenses with Monk
(Ground 7). [R. 64 pp. 9–12] In assessing these ineffective assistance of counsel claims, the
Report recognized that the relevant question is whether McMahon’s assistance was reasonable
considering all the circumstances. [R. 110 p. 27 (citing Strickland, 466 U.S. at 688)] The
Magistrate Judge found that Monk failed to demonstrate counsel’s performance was deficient
because McMahon, given all the evidence he reviewed 3, made a reasonable investigation under
the circumstances at the time and could have reasonably concluded that no additional
investigation was necessary. 4 [R. 110 pp. 26–28 (citing R. 95 Hearing Transcript pp. 12, 32–33)]
The Report also found that McMahon, based on the evidence he reviewed, could have reasonably
concluded his time was better spent attempting to negotiate a favorable plea agreement for
Monk. [R. 110 p. 27] The Report corroborated this finding by pointing out “[i]ndeed, McMahon
advised Monk in an April 18, 2013 letter of this strategic decision, writing that he could not
recommend going to trial because ‘the conviction would be easily obtained by the government as
The Report noted that McMahon testified he reviewed the paperwork generated in Indiana which included what
had been filed in the Jefferson Family Court on the domestic violence matters; discovery received from the United
States; the search warrants and narrative reports generated by Clark County, Indiana regarding Monk’s arrest; the
video of Monk’s interview by law enforcement in Indiana; Monk’s statement; Jane Doe’s statement; the videotape
made by Monk of the sexual activity between himself and Jane Doe; text messages and photographs sent as text
messages between Monk and Jane Doe; and information obtained from Sandra Monk’s attorney. [R. 110 pp. 27
(citing R. 95 Hearing Transcript pp. 12, 32–33); R. 95 p. 38]
4
To reinforce the determination that McMahon could have reasonably concluded that no additional investigation
was necessary, the Report quotes part of a sentence from Rompilla v. Beard, 545 U.S. 374 (2005). The quote from
Rompilla reads “the duty to investigate does not force defense lawyers to scour the globe on the off chance
something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further
investigation would be a waste.” Id. at 383. Monk points out the quote is actually part of an argument by the
government that the Supreme Court rejected. [R. 116 pp. 8–9] While the Report may have mistakenly relied on that
quoted line from Rompilla, there is Supreme Court precedent holding that further investigation is excusable where
counsel has evidence suggesting it would be fruitless. See Wiggins v. Smith, 539 U.S. 510, 525 (2003) (citing Burger
v. Kemp, 483 U.S. 776, 794 (1987); Darden v. Wainwright, 477 U.S. 168, 186 (1986); Strickland v. Washington, 466
U.S. 668, 699 (1984)). Thus, the Report’s quote from Rompilla has not prejudiced Monk.
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[Monk] and [Jane Doe] are identifiable on the video and the content satisfies the statutory
elements for the production charge.’” [R. 110 pp. 27–28 (quoting R. 97 Gov’t’s Ex. 3)] The
Report also relied on McMahon’s testimony indicating that due to the strength of the
prosecution’s evidence, his strategy was to get Monk “the best result with a minimum amount of
time . . .” [R. 110 p. 28 (quoting R. 95 Transcript p. 40)]
Contrary to Monk’s assertion, the Report identified correspondence and testimony from
McMahon indicating he had a strategic reason for declining to conduct further investigation that
would have included interviewing Sandra Monk and Jane Doe. Further, the Report’s analysis is
consistent with the Supreme Court’s statement that counsel “has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. It also comports with the Supreme Court’s instruction
that “a particular decision not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id.
Monk disputes the Report’s finding that McMahon could have reasonably concluded his
time was better spent attempting to negotiate a favorable plea agreement. Monk does this by
asserting that the government announced it was withdrawing from plea negotiations well before
his guilty plea. [R. 116 p. 8] But the record fatally undermines his assertion. The Report’s
finding is substantiated by emails discussing plea negotiations between McMahon and AUSA
Lawless through July 17, 2013 [R. 97, Movant’s Ex. 5]; McMahon’s unopposed motion on July
18, 2013, asking the Court to continue the trial date and extend the plea agreement deadline
because the parties needed more time to negotiate a resolution of the case [R. 26]; and the
Court’s Order extending the plea agreement deadline to September 27, 2013 and moving the trial
date to October 15, 2013 [R. 27]. The negotiations continued until the government discovered
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that Monk had been surreptitiously sending letters to Jane Doe in violation of the Court’s order
to cease all contact with her. [R. 97, Movant’s Ex. 6; see also R. 20; R. 30; R. 32]. On August
28, 2013, the government announced it was withdrawing from plea negotiations because of
Monk’s conduct. [R. 97, Movant’s Ex. 6] Thus, the government made its position clear one
month before Monk entered his guilty plea on September 27, 2013. [R. 34] Notably, by
torpedoing McMahon’s efforts to negotiate a favorable plea agreement, Monk put himself in the
untenable position of having to decide whether to go on to trial and undoubtedly be convicted on
both charges because the evidence against him was overwhelming or plead guilty to both
charges to reduce his potential sentencing exposure. 5 [R. 95 Hearing Transcript p. 35]
The Court also notes that Monk has not provided any evidence such as testimony or
affidavits from Sandra Monk and Jane Doe substantiating his bare assertion that questioning
them might have provided useful information for his defense. At best, Monk speculates that
questioning his then-wife might have resulted in the discovery of information sufficient to
overcome the issuing judge’s probable cause finding on the search warrant for the motel room.
[R. 97, Gov’t’s Ex. 4] see United States v. Wright, 343 F.3d 849, 864 (6th Cir. 2003) (the
reviewing court must determine whether, in light of the totality of the circumstances, the issuing
judge had a substantial basis for concluding that probable cause existed). Moreover, Monk’s
rhetoric ignores McMahon’s testimony about reviewing the materials filed in the Jefferson
Family Court proceedings; the videotape made by Monk of the sexual activity between himself
and Jane Doe; the text messages and photographs sent between Monk and Jane Doe; the
affidavits, search warrants and narrative reports generated by law enforcement in Indiana;
After AUSA Lawless withdrew from plea negotiations, McMahon talked with Monk about pleading guilty to the
charges, and what would happen if he went to trial and what a trial would entail. [R. 95 Hearing Transcript pp. 19–
20, 34–35] McMahon also talked with Monk about his sentencing exposure under the Sentencing Guidelines and
the impact that acceptance of responsibility could have on his sentence. [Id.]
5
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Monk’s own statement; Jane Doe’s statement; and information obtained from Sandra Monk’s
attorney. [R. 110 pp. 27 (citing R. 95 Hearing Transcript pp. 12, 32–35); R. 95 p. 38] Viewing
the facts of the case as of the time of his conduct, McMahon complied with his duty to make
reasonable investigations and could have reasonably concluded that no additional investigation
such as questioning Sandra Monk and Jane Doe was necessary. See Strickland, 466 U.S. at 690–
91.
Monk’s reliance on Towns v. Smith, 395 F.3d 251, 258–59 (6th Cir. 2005) is futile
because the circumstances are distinguishable. Defense counsel in Towns failed to conduct a
reasonable investigation into an eyewitness with significant exculpatory information, failed to
call that witness at trial, and counsel’s failures prejudiced the defendant’s case. Id. (eyewitness
consistently identified two other individuals who robbed and murdered the victim). Here, by
contrast, McMahon made a reasonable investigation under the circumstances at the time and
could have reasonably concluded that no additional investigation such as interviewing Sandra
Monk and Jane Doe was necessary.
Monk’s dependence on United States v. Arny, 137 F. Supp. 3d 981, 983–96 (E.D. Ky.
2015), aff’d, 831 F.3d 725 (6th Cir. 2016) is equally unavailing because the circumstances are
distinguishable. Defense counsel in Arny failed to conduct a reasonable investigation into
several witnesses with exculpatory information, lied to Arny about one of the witnesses, failed to
call the witnesses at trial, and those failures prejudiced the defendant’s case. Id. For example,
Dr. Arny wanted Dr. Saxmon called as a defense witness because she created the pain
management treatment plans for the patients that Dr. Arny treated after he replaced Dr. Saxman
at the clinic. Id. at 987–89. Dr. Saxman could have explained why she believed her treatment
plans were medically necessary which would have rebutted the government’s direct evidence
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that Dr. Arny could not have had a legitimate medical purpose for prescribing the drugs. Id.
Further, Dr. Arny submitted six affidavits from previous patients whose testimony would have
been helpful if they had been interviewed and called to testify by defense counsel. Id. at 989–90.
Here, by contrast, McMahon made a reasonable investigation under the circumstances at the time
and could have reasonably concluded that no additional investigation such as interviewing
Sandra Monk and Jane Doe was necessary.
Additionally, in Towns and Arny the courts concluded there was a reasonable probability
that, but for defense counsel’s errors, the jury would have reasonable doubt about the defendant’s
guilt. Towns, 395 F.3d at 260–61; Arny, 137 F. Supp. 3d at 991–96. In contrast to Towns and
Arny, Monk’s case involved a guilty plea. In guilty plea cases where the alleged error of counsel
is a failure to investigate or discover potentially exculpatory evidence, “the determination
whether the error ‘prejudiced’ the [movant] by causing him to plead guilty rather than go to trial
will depend on the likelihood that discovery of the evidence would have led counsel to change
his recommendation as to the plea.” Hill, 474 U.S. at 59. As explained above, Monk torpedoed
McMahon’s attempt to negotiate a plea agreement with AUSA Lawless. As a result, Monk put
himself in the untenable position of having to decide whether to go on to trial and undoubtedly
be convicted on both charges because the evidence against him was overwhelming or make an
open plea to both charges. McMahon recommended Monk make an open plea to reduce his
potential sentencing exposure. [R. 95 Hearing Transcript p. 35] Monk has not demonstrated that
interviews of Sandra Monk and Jane Doe would have uncovered any evidence that would have
led McMahon to change his recommendation as to the open plea. In sum, the holdings in Towns
and Arny are not controlling here and Monk has not demonstrated the Report erred as to his
claim that McMahon failed to investigate or fulfill his discovery obligations. Therefore, Monk’s
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objections are without merit and the Court adopts the Report’s findings as the opinion of the
Court.
B. McMahon failed to file a motion to suppress based on either the search or
the arrest.
Monk objects to the recommended denial of his claim that counsel was ineffective for
failing to file suppression motions on the following three bases: (1) Monk’s warrantless arrest in
his motel room; (2) a violation of Monk’s Sixth Amendment rights; and (3) coercive police
activity during Monk’s interview. [R. 116 pp. 11–16] Regarding the first basis, Monk contends
that McMahon should have moved to suppress his arrest and all tainted evidence retrieved from
the motel room because a clear violation of the Fourth Amendment occurred when police entered
his motel room and arrested him on two misdemeanors without a warrant or probable cause and
an exigency. [Id. at pp. 11–14] Monk objects to the Report’s finding that probable cause existed
to make the warrantless misdemeanor arrests after police observed what was inside his motel
room. [Id.] Monk also objects to the Magistrate Judge choosing not to discuss his challenge to
his arrest for violating the EPO. [Id.] Additionally, Monk objects to the Report’s finding that
exigent circumstances were present to justify his arrest. [Id.]
The Report responded to Monk’s first basis by acknowledging that police arrested Monk
for violating an EPO and contributing to the delinquency of a minor. [R. 110 p. 36 (citing R. 1
Criminal Complaint Affidavit p. 2)] The Report’s discussion of applicable law recognized that
police officers need either a warrant or probable cause plus exigent circumstances in order to
make a lawful entry into a home or motel room. [Id. (citing Kirk v. Louisiana, 536 U.S. 635, 638
(2002))] Further, the Report acknowledged that when there is probable cause to believe that only
a minor offense has been committed, exigent circumstances rarely justify a warrantless entry into
a home. [Id. at pp. 36–37 (citing Welch v. Wisconsin, 466 U.S. 740, 753 (1984))]
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The Report relied on the affidavits in support of the Criminal Complaint [R. 1] and the
search warrant for Monk’s motel room [R. 97, Movant’s Ex. 4] to ascertain what the officers
knew at the time they knocked on the door to room 115 at the Star Motel in Clarksville, Indiana. 6
[R. 110 pp. 37–38] Implicit from this laundry list of information is that the officers were
investigating whether Jane Doe, a runaway juvenile, was with her step-father in the motel room
despite efforts by her mother and the Kentucky Family Court to protect Jane Doe from Monk
with an EPO. Further, the officers were aware that the Louisville Police and Kentucky Child
Protective Services were investigating allegations of sexual abuse or misconduct by Monk as to
Jane Doe. The Report relied on the affidavits in support of the Criminal Complaint [R. 1] and
the search warrant for Monk’s motel room [R. 97, Movant’s Ex. 4] to determine what evidence
was within the officers’ plain view when Monk opened the motel room door in response to the
officer’s knock. 7 [Id. at p. 38 (citing R. 1 Affidavit and R. 97, Movant’s Ex. 4 Affidavit)]
Essentially, the officers saw enough to conclude that Monk had an unfettered opportunity to
continue his sexual abuse or misconduct against Jane Doe because they were sleeping in the
same bed and were living together in the room as a couple. Thus, the Report appropriately found
that the officers had probable cause to believe that Monk was contributing to the delinquency of
a minor, and the obvious threat of further sexual abuse or misconduct to Jane Doe provided the
Specifically, the Report indicated the officers knew that Jane Doe, a minor, had been reported missing; Jane Doe’s
mother had reported that Jane Doe ran away from home; Jane Doe’s mother believed her to be possibly in the
company of her step-father, Monk; Louisville Police and Child Protective Services were investigating allegations of
sexual abuse or misconduct between Monk and Jane Doe; Jane Doe’s mother had filed for and received an EPO that
required Monk to have no contact with Jane Doe or her mother; Jane Doe’s mother believed Monk was staying in a
hotel room in southern Indiana; Clarksville police had located a car registered to Monk at the Star Motel; and the
Star Motel advised police that Monk was staying in room 115. [R. 110 pp. 37–38]
7
The officers observed that Monk was wearing nothing but his underwear and appeared to have just awakened from
sleep; Jane Doe was also in the motel room; it appeared that both Monk and Jane Doe were staying in the motel
room; and it appeared both Monk and Jane Doe had been sharing the double bed in the motel room. [Id. at p. 38
(citing R. 1 Affidavit and R. 97, Movant’s Ex. 4 Affidavit)]
6
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exigent circumstances to make a lawful entry into the motel room, immediately arrest Monk 8 and
separate him from Jane Doe. 9 [Id. at pp. 38–39] Although not mentioned in the Report,
McMahon testified that he reviewed the evidence and concluded there was not a good faith basis
to file a motion to suppress related to Monk’s warrantless arrest in his motel room. [R. 95
Hearing Transcript pp. 38–39] More importantly, the Magistrate Judge appropriately found that
Monk has not demonstrated his Fourth Amendment claim, based on his warrantless arrest in the
motel room, was meritorious as required by Kimmelman. [Id. at p. 39] Therefore, Monk’s
objections are without merit and the Court adopts the Report’s findings as the opinion of the
Court.
Moving to Monk’s second basis, he contends McMahon should have filed a motion to
suppress his statements made during the interview with Clark County detectives. [R. 116 pp. 14–
15] Monk argues his Sixth Amendment right to counsel was violated because formal
proceedings had begun against him that morning, yet he was not given the opportunity to talk to
a lawyer before he spoke to the detectives. [Id.] Further, he did not receive any information
about the possible federal charges and penalties he was facing. [Id.]
These arguments were briefed and considered by the Magistrate Judge. 10 Objections are
intended to identify specific errors in the Magistrate Judge’s Report, not to restate arguments
Although the officers arrested Monk for contributing to the delinquency of a minor, Indiana authorities ultimately
charged Monk with felony child seduction and invasion of privacy. [R. 97, Gov’t’s Ex. 5]
9
The Report, having found Monk was lawfully arrested on the charge of contributing to the delinquency of a minor,
determined it was not necessary to reach Monk’s argument challenging his arrest on the charge of violating the EPO.
[R. 110 p. 39 n.12] This was a sound basis for declining to address Monk’s argument. Therefore, the Court declines
Monk’s request to consider he intentionally violated the EPO.
10
The Report found that Monk’s Sixth Amendment right to counsel had not been violated because testimony during
the evidentiary hearing conclusively showed that Monk was mirandized and executed both a written and verbal
waiver of his rights prior to the interrogation. [R. 110 pp. 39–41 (citing R. 95 Hearing Transcript pp. 702–03, 732)]
The Report concluded that Monk failed to demonstrate McMahon’s decision not to file a motion to suppress on this
basis was unreasonable and that the outcome of the proceedings would have been any different. [Id.] Therefore, the
Report recommended denial of Monk’s claim regarding counsel’s failure to file a motion to suppress based on a
violation of the Sixth Amendment right to counsel. [Id.]
8
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already considered. See Thomas v. Dep’t of Health & Human Servs., No. 2:17-CV-02264-SHM,
2017 WL 4839076, at *3 (W.D. Tenn. Oct. 26. 2017) (citing Davis v. Caruso, No. 07-10115,
2008 WL 540818, at *2 (E.D. Mich. Feb. 25, 2008) (denying an objection that merely rehashed
arguments already considered in the Report and Recommendation)). “Objections that are merely
recitations of the identical arguments that were before the magistrate judge do not constitute
specific written objections to the proposed findings and recommendations,” and the Court is
therefore “not obligated to address” such objections. England v. Comm’r of Soc. Sec., No. 1512818, 2016 WL 5939288, at *3 (E.D. Mich. Oct. 13, 2016) (internal quotations and citations
omitted). As Monk’s objection is merely a recitation of the argument already considered by the
Magistrate Judge, the Court declines to review his objection and adopts the Report’s findings as
the opinion of the Court.
Regarding the third basis, Monk argues McMahon should have filed a motion to suppress
his statements to Clark County detectives on the grounds that coercive police activity occurred
when Monk was forced to withstand a long interview while experiencing extreme physical pain
from broken ribs. [R. 116 p. 15–16] Monk claims he told the detectives numerous times that he
was in pain. [Id.] Monk acknowledges that McMahon claimed to have strategically decided not
to file a motion to suppress to avoid Monk being impeached by his level of physical activity in
the pornographic video with Jane Doe. [Id.] Monk’s objection argues because the video took
place before his injury it could not have served as a basis for counsel’s strategic decision not to
file a suppression motion. [Id.]
The Report acknowledged Monk’s testimony that hours before the interview he suffered
broken ribs as a result of Sandra Monk and her son attacking him in the courthouse hallway. [R.
110 pp. 41–42 (citing R. 95 Hearing Transcript pp. 51–52)] But the Report noted that Monk
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offered no evidence substantiating his claim about the attack, the broken ribs, and experiencing
extreme pain. [R. 110 pp. 41–42] The Report also noted that Monk did not testify he told
McMahon about the attack, the injuries, or the pain he experienced during the interrogation. [Id.]
The Report observed that McMahon’s testimony indicated he reviewed the video recording of
Monk’s interview; he saw nothing that led him to believe Monk was in serious pain or was being
coerced in anyway; he viewed the tone of the interrogation as conversational; and he noted that
the detectives repeatedly asked Monk if he was comfortable. [Id. at p. 42 (citing R. 95 Hearing
Transcript pp. 44–45)] The Report also observed while McMahon recalled that Monk
complained to the detectives about an issue with his back, McMahon believed if Monk were to
testify about a back ailment making the interview coercive or that he could not continue
knowingly, Monk could be impeached with his actions in the pornographic video because of the
physical activity he was undergoing in the video. [Id.] The Report found McMahon’s testimony
regarding the overall tenor of the interrogation more credible than Monk’s testimony considering
the lack of documentation regarding the attack in the courthouse and lack of documentation of
any injuries Monk may have received. [R. 110 p. 42]
Monk’s objection to the Report is a non-starter because McMahon’s strategic decision
was not based on broken ribs Monk purportedly sustained hours before the interview. Rather, it
was based on a preexisting back problem that Monk mentioned to the detectives during the
interview. As to the issue of counsel’s performance, the Report relied on the above-mentioned
findings to conclude that Monk had not demonstrated McMahon’s failure to file a motion to
suppress was objectively unreasonable. [Id.] Additionally, the Report observed that McMahon
could have concluded his time would be better spent in plea negotiations. [Id.] Regarding the
issue of prejudice, the Report found that Monk had not shown but for McMahon’s failure to file
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a motion to suppress based on police coercion, the results of the proceedings would have been
different. [R. 110 pp. 42–43] Alternatively, the Report noted that the search warrant for the
motel room was not issued on the basis of Monk’s confession, and the government would have
been able to rely on information that Jane Doe provided about the video tape during her
interview. [R. 110 p. 43] For these reasons, the Report recommended the claim be denied. [Id.]
In sum, Monk’s objection is without merit and the Court adopts the Report’s findings as the
opinion of the Court.
C. McMahon failed to file a notice of appeal.
Monk objects to the Magistrate Judge’s finding that Monk has not shown that he gave
specific instructions to McMahon to file a notice of appeal. 11 [R. 116 pp. 16–17] Monk agrees
with the Report’s description of what occurred on the record at the sentencing hearing. [Id.]
Monk contends the Magistrate Judge should have credited his testimony and found that
McMahon violated his duties by failing to file a notice of appeal. [Id.] Monk sums up his
testimony as showing that he motioned to McMahan at his sentencing hearing that he wanted to
appeal, he believed McMahon was coming to the jail to discuss the appeal process with him, but
McMahon never came to the jail and he did not take any of Monk’s phone calls from the jail. [Id.
(citing R. 95 Hearing Transcript pp. 55–57)] Monk also disagrees with the Magistrate Judge’s
interpretation of an email that Monk’s sister sent to McMahon approximately five months after
the sentencing. [Id. (citing R. 95 Hearing Transcript pp. 55–56)] Monk asserts that his sister may
have used the wrong terminology, but she was requesting information regarding Monk’s
appellate brief. [Id.]
The Magistrate Judge noted that a lawyer who disregards specific instructions from the client to file a notice of
appeal acts in a manner that is professionally unreasonable and prejudice is presumed in those circumstances
without any inquiry into the merits of the appeal. [R. 110 pp. 18–19 (citing Roe v. Flores-Ortega, 528 U.S. 470, 477,
483 (2000))] Monk acknowledges that this is the controlling law as to his claim. [R. 116 pp. 16–17]
11
- 20 -
Essentially, Monk is challenging the Magistrate Judge’s factual conclusion that he did not
instruct McMahon to file a notice of appeal. Notably, the Magistrate Judge found Monk’s
post-hearing brief and his evidentiary hearing testimony inconsistent as to the details of how he
demonstrated his desire to appeal to McMahon. 12 [R. 110 pp. 19–21] Equally important, the
Magistrate Judge pointed out that Monk did not testify he affirmatively told McMahon he
wanted to appeal. [Id.] Further, the Magistrate Judge noted that McMahon testified Monk never
asked him to file an appeal. [Id. (citing R. 95 p. 28)] The Magistrate Judge also observed that on
cross-examination, Monk made a number of important admissions. [Id.] Specifically, Monk
admitted that during the sentencing hearing McMahon informed the judge that he would no
longer represent Monk after the sentencing hearing concluded; this prompted the judge to inform
Monk of the fourteen-day deadline to appeal; and the judge advised Monk that he could ask the
Clerk to file a notice of appeal on his behalf. [R. 110 p. 20 (citing R. 95 pp. 56, 60–63)]
Additionally, the Magistrate Judge noted that on cross-examination Monk admitted, despite his
claimed inability to reach McMahon by phone after the sentencing hearing, he did not ask the
Clerk to file a notice of appeal. [R. 110 p. 20 (citing R. 95 pp. 56, 61–63)]
Monk’s objection refers to a June 12, 2014 email that his sister, Robin Donaldson, sent to
McMahon. Specifically, the email reads:
I was asked by my brother to contact you to see if you could you
[sic] please tell me who Duane would contact in order to start the
appeal process? I don’t know that he has decided to do so, but he
would like to have the contact information just to have that option
open. Thank you.
12
The Report pointed out that Monk’s post-hearing brief asserted that he told McMahon that he wanted to appeal;
McMahon promised to visit him in jail on the following Friday to discuss filing an appeal; but McMahon did not
visit him after the sentencing hearing, did not accept his phone calls from the jail, and did not file a notice of appeal
[R. 110 (citing R. 100 p. 4)] The Report contrasted this with Monk’s evidentiary hearing testimony that indicated
when the judge advised him of his right to appeal and he “motioned” to McMahon that he wanted to appeal but
McMahon asked him to wait until the judge finished speaking. [R. 110 p. 19 (citing R. 95 p. 55)]
- 21 -
[R. 97, Gov’t’s Ex. 1] Later that day, McMahon responded by email indicating Monk “was
advised in court of his appellate time and to notify me if he wished to appeal so that the federal
defender’s office could file his appeal.” [Id.] Additionally, McMahon stated “I never heard from
him. The time for a direct appeal has passed.” [Id.] The Magistrate Judge observed that
Donaldson sent the email approximately five months after the sentencing hearing and that it
sought information about initiating an appeal. [R. 110 pp. 19–21] Contrary to Monk’s assertion,
this is a reasonable interpretation of what the email requested. Considering the evidence in the
record, the Magistrate Judge’s interpretation of the email is appropriate.
The Magistrate Judge considered the testimony offered by McMahon and Monk, as well
as each party’s post-hearing briefing, and decided not to credit Monk’s testimony regarding the
notice of appeal issue. [R. 110 p. 21] Based on a consideration of all the factors mentioned
above, the Magistrate Judge found that Monk had not shown that he gave specific instructions to
McMahon to file a notice of appeal. [Id.] The Court wholeheartedly agrees with the Magistrate
Judge’s factual conclusion. In sum, Monk’s objection is without merit and the Court adopts the
Report’s findings as the opinion of the Court.
IV.
Certificate of Appealability
Pursuant to Rule 11 of the Federal Rules Governing Section 2255 Proceedings for the
United States District Courts, the District Court must issue or deny a certificate of appealability
(COA) when it enters a final order adverse to the movant. The Court may only issue a COA if a
movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). “When a district court has rejected a petitioner’s claims on the merits . . . [t]he
petitioner must demonstrate that reasonable jurists would find the District Court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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“When a district court denies a Habeas petition on procedural grounds without reaching the
petitioner’s underlying constitutional claim, a COA should issue when the petitioner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. In this case, reasonable jurists would not
debate the denial of Monk’s § 2255 motion or conclude that the issues presented deserve to
proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (citing Slack, 529 U.S. at
484). Accordingly, a certificate of appealability will not be issued.
V.
Conclusion
After conducting a de novo review of the matters raised by Monk’s objections, the Court
agrees with the Magistrate Judge’s Report and Recommendation. The Magistrate Judge’s
analysis of the issues and application of the law are appropriate, and his recommendations are
adopted. Accordingly, and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED as follows:
1. The Report and Recommendation [R. 110] is ADOPTED as the opinion of the Court;
2. Monk’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 [R. 64] is DENIED and DISMISSED with prejudice;
3. No certificate of appealability will issue;
4. A separate Judgment shall issue contemporaneously with this Order.
This the 2nd day of July, 2020.
Copies:
Marvin Duane Monk
Counsel of Record
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