Hawkins v. USA

Filing 46

DECISION AND ENTRY: (1) ADOPTING THE REPORT AND RECOMMENDATIONS OF THE MAGISTRATE JUDGE (Doc. 50) in Case 3:11-cr-104, USA v Reginald E. Hawkins,; (2) OVERRULING DEFENDANTS OBJECTIONS (Doc. 51); (3) DENYING DEFENDANTS MOTION TO VACATE (Doc. 44) WITHOUT PREJUDICE; AND (4) DENYING A CERTIFICATE OF APPEALABILITY. Signed by Judge Timothy S. Black on 4/26/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
REGINALD E. HAWKINS,
Defendant.

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Case No. 3:11-cr-104; 3:12-cv-411
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY: (1) ADOPTING THE REPORT AND
RECOMMENDATIONS OF THE MAGISTRATE JUDGE (Doc. 50);
(2) OVERRULING DEFENDANT’S OBJECTIONS (Doc. 51); (3) DENYING
DEFENDANT’S MOTION TO VACATE (Doc. 44) WITHOUT PREJUDICE; AND
(4) DENYING A CERTIFICATE OF APPEALABILITY
This case is before the Court on the Report and Recommendations of the United
States Magistrate Judge Michael R. Merz. (Doc. 50). The Magistrate Judge concludes that
Defendant’s Motion to Vacate fails to state a claim upon which relief can be granted and
recommends that the Motion be dismissed without prejudice. Additionally, the Magistrate
Judge concludes that Defendant’s should be denied a certificate of appealability. Defendant
sent a letter to the Court (Doc. 51), which the Court construes as an Objection to the Report
and Recommendations of the Magistrate Judge. The issues are now ripe for decision.
Hawkins was originally charged in a five count indictment and subsequently entered
knowing and voluntary pleas on two counts: (1) possession with the intent to distribute in
excess of 100 grams or more of a mixture or substance containing a detectable amount of
heroin, a Schedule 1 controlled substance (“the drug count”); and (2) possession of a firearm
in furtherance of a drug offense (“the gun count”). The Court originally sentenced Hawkins
to 96 months on the drug count and 60 months on the gun count, to be served consecutively,

for a total aggregate sentence of 156 months. (Doc. 31). Hawkins appealed from the
original judgment entry. (Doc. 33).
While this case was pending on direct appeal, the Government filed a Motion in this
Court, to which the Court issued an Indicative Ruling certifying that it would grant the
Government’s Motion if the Sixth Circuit Court of Appeals remanded the case for that
purpose. On or about July 13, 2012, the Sixth Circuit issued an Order stating:
The defendant moves to remand to the district court for resolution of a
pending motion. The district court has issued an indicative ruling,
stating that were the matter remanded, it would grant the motion.
There being no opposition from the government, and in view of the
indicative ruling,
It is ORDERED that this matter is remanded to the district court for
further proceedings. This order is dispositive of this appeal, and if any
party seeks further review, a new appeal must be filed. Fed. R. App.
12.1; 6 Cir. R. 45(a)(7).
(Doc. 41). Following remand, on September 5, 2012, the Court resentenced Hawkins to an
aggregate 94 month term of imprisonment. (Doc.42).
On December 11, 2012, Hawkins filed a Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255. In his Motion, Hawkins sets forth four grounds for
relief, all generally arguing ineffective assistance of counsel. Specifically, Hawkins states in
his Motion that: (1) trial counsel did not fully represent him during court proceedings;
(2) counsel never raised any arguments that he requested; (3) counsel never filed any motions
that he requested; and (4) counsel did not keep or obtain an attorney-client relationship.
(Doc. 44). Hawkins’ Motion sets forth no specific facts supporting his claims for relief.
In response to Hawkins’ Motion, the Government argues that Hawkins presents only
vague and conclusory allegations which fail to meet his burden of showing entitlement to
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relief under § 2255. (Doc. 46). The Magistrate Judge agrees with the Government and
concludes that Hawkins fails to state a claim upon which relief can be granted because his
Motion is devoid of any facts supporting the grounds for relief asserted. (Doc. 50).
Following issuance of the Report and Recommendations by the Magistrate Judge, Hawkins
submitted a letter to the Court wherein he provides additional, yet limited, information
regarding the grounds for relief set forth in his Motion. (Doc. 51). The Court now reviews
those Objections de novo, as required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b).
“To warrant relief under section 2255, 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.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir.
2003) (citing Brecht v. Abrahamson, 507 U.S. 619 (1993)). Relief under § 2255 “is
warranted only where a petitioner has shown ‘a fundamental defect which inherently results
in a complete miscarriage of justice.’” Id. (citing Davis v. United States, 417 U.S. 333
(1974)). However, where a § 2255 motion contains only “conclusional averments” without
“factual material upon which to test the validity of [the] conclusions[,]” such a motion can be
dismissed without “evidentiary hearing.” Green v. Wingo, 454 F.2d 52, 53 (6h Cir. 1972);
see also Milburn v. United States, Nos. 2:10-cv-66, 2:05-cr-100, 2013 WL 1120856, *1
(E.D. Tenn. Mar. 18, 2013) (stating that “[a] § 2255 motion may be dismissed if it only
makes vague conclusory statements without substantiating allegations of specific facts and
thereby fails to state a claim cognizable under § 2255”).
Ineffective assistance of counsel claims “are appropriately brought by filing a motion
under section 2255.” Id. (citing United States v. Galloway, 316 F.3d 624 (6th Cir. 2003)).

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Relief in § 2255 proceedings on ineffective assistance of counsel claims requires that
defendant “establish two elements: (1) counsel’s performance fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for the
deficiency, the outcome of the proceedings would have been different.” Id. (citing Strickland
v. Washington, 466 U.S. 668 (1984)).
In his Objections, with regard to the first ground, Hawkins states that counsel did not
file any motion or otherwise address the Court with regard to the firearm for which he was
charged. Hawkins presents no specifics about this purported ground for relief and it is
unknown to the Court what type of motion or argument Hawkins contends should have been
presented to the Court.1
With regard to the second ground for relief, Hawkins contends that counsel did not
address his medical state at sentencing in support of a downward departure. Hawkins
presents no particular facts upon which the Court could find that he suffers from a medical
condition that would warrant a downward departure.
Concerning the third ground for relief, Hawkins contends that counsel did not explain
if or why certain motions were presented to the Court. Hawkins fails to set forth any
prejudice that may have resulted from the lack of explanation that would entitle him to relief.
Finally, with regard to the fourth ground for relief, Hawkins states that he never
received any response to his direct appeal that was filed after sentencing. Hawkins, however,
sets forth no facts or argument demonstrating why any such lack of explanation would entitle
him to relief under § 2255.
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In entering a guilty plea to the gun charge, Hawkins admitted in his plea agreement that he “kept a gun in
the house for protection of his drugs so that he did not get robbed.” (Doc. 25, PAGEID 73).
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As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court reviewed the
comprehensive findings of the Magistrate Judge and considered all issues presented in
Defendant’s Motion de novo. The Court, based on its review, agrees with the conclusions of
the Magistrate Judge and finds that Defendant’s grounds for relief, as set forth in his original
Motion, must be DENIED and DISMISSED. See Napier v. United States, 9 F.3d 108,
(stating that, “[t]o be entitled to a hearing, the prisoner must set forth detailed factual
allegations which, if true, would entitle him to relief under § 2255” ) (citations omitted).
Accordingly, the Court concludes that: (1) the Report and Recommendations of the
Magistrate Judge (Doc. 50) is ADOPTED in its entirety; (2) Defendant’s Objections (Doc.
51) are OVERRULED; (3) Defendant’s Motion to Vacate (Doc. 44) is DENIED without
prejudice; and (4) any requested certificate of appealability is DENIED. 2
IT IS SO ORDERED.

Date: 4/26/13

/s/ Timothy S. Black
Timothy S. Black
United States District Judge

2

In a note submitted along with his letter, Defendant requests information from the Court regarding his
direct appeal. Defendant suggests that he is unaware of the reason why his direct appeal was dismissed on his own
motion. Defendant also states that, at some point, he contacted his appellate attorney to request that an appeal be refiled. Even insofar as the Court could construe Defendant’s suggestions in this regard as additional grounds in
support of his Motion to Vacate, such grounds are presented to this Court for the first time in response to the Report
and Recommendations of the Magistrate Judge. The Sixth Circuit has indicated that, “while the Magistrate Judge
Act, 28 U.S.C. § 631 et seq., permits de novo review by the district court if timely objections are filed, absent
compelling reasons, it does not allow parties to raise at the district court stage new arguments or issues that were not
presented to the magistrate.” Murr v. United States, 200 F.3d 895, 902 n1 (6th Cir. 2000) (citing Marshall v Chater,
75 F.3d 1421 (10th Cir. 1996) (stating that “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived”); Ward v. United States, 208 F.3d 216, 2000 WL 282648, *1 (6th Cir. Mar.
13, 2000) (finding that petitioner’s failure to raise an argument before the magistrate judge amounted to waiver
because claims “raised for the first time in objections to a magistrate judge’s report [are] deemed waived”); The
Glidden Co. v. Kinsella, 386 Fed.Appx. 535, 544 n2 (6th Cir. 2010). The Court finds that Defendant waived any
grounds for relief set forth in Defendant’s note.
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