United States District Court, N.D. Ohio, Eastern Division
PRESTON W. DOSS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OF OPINION AND ORDER
Y. Pearson United States District Judge.
accordance with Rule 4(b) of the Rules Governing § 2255
Proceedings for the United States District Courts, the Court
has undertaken an initial consideration of Petitioner's
§ 2255 motion. For the reasons that follow, the Court
orders the following:
Ground One (Ineffective Assistance of Counsel), the United
States Attorney shall respond to the Motion for Relief Under
28 U.S.C. § 2255 (ECF No. 57) within thirty (30) days of
the date of this Order. Petitioner shall serve and file a
reply, if any, within 14 days after service of
Respondent's answer or other pleading.
Two (Lack of Factual Basis for Guilty Plea) and Three (Lack
of Due Process at Change of Plea Hearing) of Petitioner's
motion, however, are dismissed pursuant to Rule 4(b) of the
Rules Governing § 2255 Proceedings because “it
plainly appears from the motion, any attached exhibits, and
the record of prior proceedings that the moving party is not
entitled to relief” on those counts. That conclusion is
Ground One: Ineffective Assistance of Trial Counsel
first ground for relief, Petitioner posits several reasons
that his trial counsel was ineffective. ECF No. 57-1 at
PageID#: 343-44. That contention shall persist.
Grounds Two and Three: Petitioner's Guilty Plea
has thoroughly litigated the Court's acceptance of his
guilty plea. The claims he advances in Grounds Two and Three
of his motion have already been raised and rejected by this
Court and the Court of Appeals.
Ground Two of his motion, Petitioner argues that there was no
factual basis for his guilty plea as to Count Two, possession
of PCP with intent to distribute. ECF No. 57-1 at PageID#:
345-47. After Petitioner pleaded guilty before Magistrate
Judge George J. Limbert, the magistrate judge issued a report
recommending that the Court accept Petitioner's guilty
plea as to Counts One and Two. See ECF Nos. 30, 31, 32.
Petitioner did not object to the report and recommendation.
The undersigned reviewed the transcript and the magistrate
judge's report and recommendation de novo and explicitly
concluded that “the magistrate judge . . . correctly
found that there was an adequate factual basis for the
plea.” ECF No. 34 at PageID#: 116. Later, during a
hearing on Petitioner's motion to withdraw his guilty
plea as to Count Two (see ECF No. 35), the undersigned
observed that, when Petitioner acknowledged that he was
guilty of Count Two and agreed with the Government's
rendition of the factual basis for the charge, he “knew
what he was doing, he knew what the conversation he was
having with Judge Limbert was about, he was engaged and
attentive, and when he agreed, he meant to agree.” ECF
No. 53 at PageID#: 277. On appeal, the Court of Appeals also
concluded that Petitioner “admitted his guilt of the .
. . drug offenses and confirmed the government's factual
basis.” Sixth Circuit No. 17-4008, Docket No. 18-2
at 4 (June 25, 2018); ECF No. 55 at PageID#: 330. Ground Two
of Petitioner's motion raises no argument that has not
already been foreclosed.
Three of Petitioner's motion similarly fails. Petitioner
asserts that, during his change-of-plea hearing, Magistrate
Judge Limbert “failed to conduct any form of inquiry as
to the defendant's mental health . . . .” ECF No.
57-1 at PageID#: 348. That assertion, however, is plainly
belied by the record. During the hearing, the magistrate
judge confirmed that Petitioner has an 11th grade education,
is able to speak and understand English, has a history of
drug abuse, and takes a prescribed mental-health medicine.
ECF No. 32 at PageID#: 93. The magistrate judge also
confirmed that Petitioner had not consumed any drugs or
alcohol in the preceding 24 hours, and he confirmed that
neither the Government's counsel nor Petitioner's own
counsel had any reason to doubt that Petitioner was competent
to enter a guilty plea. Id. at PageID#: 94. On de
novo review of the magistrate judge's report and
recommendation, to which no objections were filed, the
undersigned observed that Petitioner “was placed under
oath and determined to be competent to enter a plea of
guilty, ” and that “Magistrate Judge Limbert also
correctly determined that [Petitioner] had . . . tendered his
plea of guilty knowingly, intelligently, and
voluntarily.” ECF No. 34 at PageID#: 115-16. At a later
hearing, the undersigned restated that the magistrate
judge's change-of-plea colloquy was “thorough [and]
detailed, ”and that Petitioner was “engaged and
attentive.” ECF No. 53 at PageID#: 271, 277. The Court
of Appeals, on reviewing the record, also concluded that
Petitioner “was competent to plead guilty.” Sixth
Circuit No. 17-4008, Docket No. 18-2 at 4 (June 25, 2018);
ECF No. 55 at PageID#: 330. Ground Three of Petitioner's
motion raises no argument that has not already been
to Rule 4(b) of the Rules Governing § 2255 Proceedings,
the United States Attorney shall respond to Ground One of
Petitioner's Motion for Relief Under 28 U.S.C. §
2255 (ECF No. 57) within thirty (30) days of the date of this
Order. Petitioner shall serve and file a reply, if ...