United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON REMANDED
Michael R. Merz United States Magistrate Judge
case is before the Court on Defendant's Objections (ECF
No. 544) to the Magistrate Judge's Report and
Recommendations (the Report, ” ECF No. 543) on two
matters remanded to this Court by the Sixth Circuit Court of
Appeals, the “Addendum” (ECF No. 498) and the
“Motion to Enforce” (ECF No. 510)(collectively,
the “Remanded Matters”). Judge Rice has
recommitted the Remanded Matters for reconsideration in light
of the Objections (Recommittal Order, ECF No. 551).
Report is not concerned with Dewitt's Motion for First
Step Act relief, on which he is represented by counsel (ECF
No. ECF No. 538).
Report concluded that the Remanded Matters should be
dismissed because the Sixth Circuit had set the law of the
case in its decision on the second-or-successive (28 U.S.C.
§ 2244(b)) issue and this Court was bound by that
decision. This Court had construed the Remanded Matters in
the first instance as motions to vacate under 28 U.S.C.
§ 2255. The Sixth Circuit did not disturb that
characterization, but held no permission to proceed was
needed under § 2244(b) because Dewitt was complaining of
breaches of his Plea Agreement which occurred in 2016, years
after his original § 2255 Motion was decided. In re:
Keith W. Dewitt, Sr., No. 18-3604/3605
(6thCir. Oct. 30, 2018)(unreported; copy at ECF
argues the law of the case is limited to the issue actually
decided by the Sixth Circuit, to wit, that the United States
was not precluded by the Plea Agreement from opposing
Dewitt's motion to sentence reduction under 18 U.S.C.
§ 3582(c)(2). In addition, of course, the circuit court
has also affirmed Judge Rice's decision denying relief
under § 3582. In re: Keith W. Dewitt, Sr., No.
18-3501 (6th Cir. Feb. 7, 2019)(unreported; copy
at ECF No. 530).
United States opposed granting relief on the Remanded Matters
(ECF No. 533). Once the Sixth Circuit issued its mandate on
March 4, 2019, and jurisdiction returned to this Court (ECF
No. 536), Dewitt filed his “Objection and Opposition to
Dismiss § 2255 Petition Without a Hearing (ECF No. 542).
That made the Remanded Matters ripe and the Magistrate Judge
filed the Report recommending that both of them be dismissed
because the Sixth Circuit had decided that there was no
breach of the Plea Agreement.
Report noted that Dewitt had added five claims in his
post-remand Objections which were not before the Sixth
Circuit, to wit, ambiguities in the Plea Agreement,
ineffective assistance of trial counsel, and court error in
the plea colloquy. The Report concluded that because these
matters had not been pleaded in the Remanded Matters as
filed, they could not properly be considered now. It also
concluded they were barred by the statute of limitations and,
because they arose before Dewitt's first § 2255
Motion, he would require circuit court permission to proceed
(Report, ECF No. 543, PageID 2689).
correctly notes that the Sixth Circuit did not decide any of
his new claims and thus this Court is not bound by the law of
the case as to those claims (Objections, ECF No. 544, PageID
2691). He then offers three specific objections.
Dewitt claims he has “consistently argued, because of
how the plea agreement is written, and where the government
has not argued that Petitioner's reading of the plea
agreement is inherently incredible, the agreement affords
Petitioner the ability to withdraw from the plea agreement,
for cause.” Id. at PageID 2692. He then argues
he is entitled to an evidentiary hearing because he has
raised a factual issue. Id.
“Addendum, ” Dewitt argued the Government had
breached the Plea Agreement by opposing his motion for
sentence reduction (ECF No. 498). He suggested as remedies
either specific performance or rescission of his signature.
Id. at PageID 2468-69. But the Sixth Circuit has
definitively interpreted the Plea Agreement and found that
the United States did not breach the Agreement. Furthermore,
the question of contract interpretation is not a factual
issue on which evidence would be pertinent, but a question of
law for the Court.
second objection is that the Magistrate Judge “has
mistakenly grouped Petitioner's ‘Breach of Plea
Agreement' argument and the ambiguities in the plea
agreement claims, as claims being newly raised . . .”
(Objections, ECF No. 544, PageID 2692). Rather, he says,
these are issues in the Remanded Matters that the Sixth
Circuit “sent back down to the district court . . .
issue raised in the Addendum is whether the Government's
opposition to sentence reduction constituted a breach of the
Plea Agreement, and the Sixth Circuit decided it did not.
Dewitt argued exactly the same claim in his Motion to hold
the United States in Breach of the Plea Agreement, the second
Remanded Matter. (See ECF No. 510, PageID 2519.) In support
of that claim, Dewitt argued that “[i]f there is [sic]
any ambiguities with Petitioner's plea agreement, then
the Court must address those ambiguities, and construe them
against the government.” Id. at PageID 2521.
Dewitt argued those ...