United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
criminal case is before the Court on remand from the United
States Court of Appeals for the Sixth Circuit. Hunter v.
United States, 2019 U.S. App. LEXIS 31768
(6th Cir. Oct. 24, 2019), rehearing denied, 2019
U.S. App. LEXIS 34017 (6th Cir. Nov. 13, 2019).
case was remanded for this Court to decide Hunter's
Motion for Reconsideration (ECF No. 236). Upon remand the
Magistrate Judge filed a Report and Recommendations
recommending that the Motion for Reconsideration be denied
(the “59(e) Report, ” ECF No. 288). Hunter has
objected (ECF No. 291) and District Judge Rose has
recommitted the case to the Magistrate Judge for
reconsideration in light of the Objections (ECF No. 292).
Hunter's Motion to Vacate under 28 U.S.C. § 2255 was
filed on September 11, 2012, more than seven years ago (ECF
No. 135). On October 29, 2013, Judge Rose adopted a Report
recommending dismissal of all claims except Ground Two (ECF
No. 167). An evidentiary hearing was held on Ground Two in
April and June, 2014, but because of repeated continuances
briefing was not complete until many months later and a
Report on Ground Two was not issued until August 24, 2015
(ECF No. 209). On February 19, 2016, Judge Rose ordered the
Motion to Vacate dismissed with prejudice (ECF No. 229). The
instant Motion for Reconsideration, determined by the circuit
court to qualify as a motion to amend the judgment under
Fed.R.Civ.P. 59(e) was filed March 14, 2016 (ECF No. 233).
Because of the pendency of Hunter's appeal, the Report on
the Motion was not filed until December 5, 2019, two weeks
after the circuit court mandate issued (ECF No. 287), but
three and one-half years after the Motion for Reconsideration
for a Motion to Amend the Judgment
59(e) Report sets forth the Sixth Circuit standard for
granting a motion to amend the judgment (ECF No. 288, PageID
4163). Essentially a movant must show a clear error of law,
newly discovered evidence, an intervening change in the
controlling law, or the need to correct a manifest injustice.
Gencorp, Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999); accord: Nolfi v. Ohio Ky.
Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting
Leisure Caviar, LLC v. United States Fish & Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010).
Objections do not quarrel with this statement of the
standard. Instead, they assert clear errors of law and newly
discovered evidence (ECF No. 291, PageID 4176). These
arguments will be examined in turn.
Error of Law
claim in Ground Two of his Motion to Vacate is that he
received ineffective assistance of trial counsel when
attorney Matthew Arntz advised him that the United States
could not convict him as charged because it had not seized a
sufficient quantity of drugs from him personally (Motion, ECF
No. 135, PageID 2277). Hunter contends this bad advice led
him to reject a favorable plea offer.
evidentiary hearing in 2014, Hunter testified to getting the
bad advice but, as the Report notes, provided no
corroboration in the form of notes taken of the advice at the
time or testimony from the other two criminal defense lawyers
with whom he claims he discussed Arntz's advice. The
Report summarized this state of the evidence: “Hunter
presented no external evidence of Arntz's lack of
credibility.” (Report, ECF No. 288, PageID 4165).
Hunter argues this is clear error and then lists a full page
of places in the record that supposedly “contradict
Arntz's testimony or support Hunter's claim.”
(Objections, ECF No. 291, PageID 4177-78).
first three of these instances relate to the alleged bad
advice. Id. at PageID 4177. Hunter, then represented
by counsel, argued the Magistrate Judge's finding that
Arntz was credible was inconsistent with Arntz's
admission on cross-examination that there was a theory abroad
among defense counsel that United States v. Booker,
543 U.S. 220 (2005), might have an impact on proof of drug
quantities. Arntz admitted discussing Booker with
Hunter, but denied ever advising Hunter that Booker
would prevent his conviction on the most serious charge
against him. At the evidentiary hearing nine years later,
Hunter was certain the bad advice had been given. Ultimately
the Magistrate Judge credited Arntz's recollection over
listing these three instances related to the alleged bad
advice, Hunter then lists five other supposed instances of
deficient performance by Arntz which Hunter believes
undermine Arntz's credibility. Id. at PageID
4178. None of them are about the alleged bad advice on drug
quantity. None of them were pleaded as instances of
ineffective assistance of trial counsel in the Motion to
Vacate. None of them were relied on in briefing the Motion to
Vacate after the evidentiary hearing. Certainly the
Court's failure to find on its own instances of supposed