United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
§ 2255 action is before the Court on Defendant's
Objections (ECF No. 57) to the Magistrate Judge's Report
and Recommendations (ECF No. 56) recommending the Motion be
dismissed. Judge Rice has recommitted the matter under
Fed.R.Civ.P. 72(b) for reconsideration in light of the
Objections (Recommittal Order, ECF No. 58).
Motion Mr. Turner claimed Judge Rice had promised him that he
would get credit against any prison time imposed by this
Court for his supervised release violation for any time he
spent in federal custody prior to adjudication of the
supervised release violation. The existence of that promise
is proved by Judge Rice's July 22, 2016, letter to Mr.
Turner, a copy of which is attached to the Motion at ECF No.
55, PageID 168.
of the docket shows that Judge Rice's Arrest Warrant for
the supervised release violation was issued on January 27,
2015, but not executed by the Marshal and lodged as a
detainer until March 14, 2017 (ECF No. 48, PageID 113).
However, the only times when Truner has come into federal
custody have been when Judge Rice issued writs of habeas
corpus ad prosequendum to obtain his presence in this Court
for a preliminary revocation hearing on March 14, 2017, and
for the final revocation hearing on April 25, 2017. That
means he is entitled to two days credit against his
revocation sentence. This Court, of course, has no control
over when the Common Pleas Judge will impose sentence in the
state case, but whenever that occurs and after Turner has
served whatever sentence Judge Dankof imposes, Turner will
come into federal custody to begin serving the twenty-four
month sentence Judge Rice imposed. At that time Turner must
apply to the federal Bureau of Prisons for his jail time
Objections make it clear that he has no good claim of
ineffective assistance of trial counsel against Assistant
Federal Defender Anderson. Turner has not served any
additional time nor will he because of anything Mr. Anderson
did or did not do. Judge Rice's 2016 letter makes a
commitment which will be carried out whenever Turner begins
to serve his federal sentence.
Motion to Vacate under 28 U.S.C. § 2255 is not an
all-purpose vehicle for raising complaints about a
person's federal sentence. A prisoner seeking relief
under 28 U.S.C. § 2255 must allege either “(1) an
error of constitutional magnitude; (2) a sentence imposed
outside the statutory limits; or (3) an error of fact or law
that was so fundamental as to render the entire proceeding
invalid” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003); 563 F.3d 240, 250
(6th Cir. 2009). In other words, to warrant relief
under § 2255, a prisoner must demonstrate the existence
of an error of constitutional magnitude which had a
substantial and injurious effect of influence on the guilty
plea or the jury's verdict. Griffin v. United
States, 330 F.3d 733, 737 (6thCir. 2006),
citing Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). To obtain relief under 28 U.S.C. § 2255, a
defendant must establish the denial of a substantive right or
defect in the trial that is inconsistent with the rudimentary
demands of fair procedure. United States v.
Timmreck, 441 U.S. 780 (1979); United States v.
Ferguson, 918 F.2d 627, 630 (6th Cir.
Turner's claim that he has not yet received credit for
time in custody prior to sentencing on his supervised release
violation is not properly a constitutional claim for
ineffective assistance of trial counsel because nothing Mr.
Anderson did or did not do has had any impact on that claim.
Therefore, it is respectfully recommended that the §
2255 Motion be dismissed without 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.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after ...