Miers v. United States

• Docket Number: 1:19-cv-20740-KMM
• Decision Date: 21 March 2022
• Parties: TIMOTHY JOHN MIERS, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Florida

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TIMOTHY JOHN MIERS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:19-cv-20740-KMM

United States District Court, S.D. Florida

March 21, 2022

OMNIBUS ORDER

K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE.

THIS CAUSE came before the Court upon pro se Movant Timothy John Miers's (“Movant”) Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (“Mot.”) (ECF No. 11). The matter was referred to the Honorable Lisette M. Reid, United States Magistrate Judge, who issued a Report and Recommendation recommending that the Motion be denied. (“R&R”) (ECF No 71). Movant filed objections.^[1](“Objs.”) (ECF No 79). Respondent filed a response to Movant's objections. (“Objs. Resp.”)

(ECF No. 84). The matter is now ripe for review. As set forth below, the Report and Recommendation is ADOPTED.

Also before the Court is Movant's Motion for Reconsideration of Order Denying Petitioner's Motion for Leave to Amend Objections to the Magistrate's Report. (ECF No. 89). As set forth below, the motion is DENIED.^[2]

I. BACKGROUND^[3]

On October 2, 2014, a federal grand jury sitting in the Southern District of Florida returned a Superseding Indictment charging Movant Timothy John Miers with one count of kidnapping, in violation of 18 U.S.C. § 1201(a)(1), and two counts of interstate domestic violence, in violation of 18 U.S.C. § 2261(a)(1), (a)(2), and (b)(3). (“Superseding Indict.”) (CR-ECF No. 18).^[4] The case proceeded to trial, where, on December 11, 2014, a jury in Miami, Florida returned a verdict finding Movant guilty of all counts charged in the Superseding Indictment. (CR-ECF No. 72).

On March 16, 2015, Movant was sentenced to life imprisonment as to Count 1, and 120 months of imprisonment as to each of Counts 2 and 3, all to be served concurrently. (CR-ECF Nos. 102, 105). This term of imprisonment is to be followed by five (5) years of supervised release. Id. On March 16, 2015, Movant filed a Notice of Appeal. (CR-ECF No. 106). On July 25, 2017, the mandate of the Eleventh Circuit issued, affirming the judgment of conviction. (CR-ECF No. 122); see also United States v. Miers, 686 Fed.Appx. 838, 840 (11th Cir. 2017) (per curiam). On February 20, 2018, the United States Supreme Court denied Movant's petition for a writ of certiorari. (CR-ECF No. 128).

On February 19, 2019, Movant filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1). The Court ordered Movant to file the instant Amended § 2255 Motion because his initial motion was an unwieldy and rambling forty-eight-page document. See generally (ECF No. 9). Movant filed the instant Amended § 2255 Motion on April 8, 2019. See generally Mot. And, on March 17, 2020, Movant filed a motion for leave to amend his Amended § 2255 Motion, asserting an additional ground for relief that was not previously raised in his Amended Motion. See generally (ECF No. 43).

Movant's Amended § 2255 Motion raises the following grounds for relief, which the Court has reproduced below from the Report and Recommendation:

1. Ground 1: His trial attorneys . . . were ineffective for failing to:

i. object to Movant's conviction as to Count 1 on double jeopardy grounds (CV ECF No. 11 at 3-5; CV ECF No. 25 at 2-15);

ii. object to the jury instruction on interstate domestic violence because it broadened the Movant's statutory maximum sentence exposure thereby resulting in a constructive amendment to Counts 2 and 3 of the Superseding Indictment (CV ECF No. 11 at 6-7; CV ECF No. 25 at 15-17);

iii. cross-examine . . . the government's “cell site expert, ” regarding his scientific findings relating to Movant's location during the time when the kidnapping was alleged to have occurred (CV ECF No. 11 at 8-11);

iv. effectively investigate, retrieve, develop, and/or present exculpatory DNA test results obtained from the pants of the kidnapped victim . . . (CV ECF No. 11 at 12-14); and, v. expose [the victim's] false testimony, and their cumulative errors, as set forth in claims 1(iii) and 1(iv) violated Movant's due process rights (CV ECF No. 11 at 14-15).

2. Ground 2: His appellate counsel failed to assign as error on appeal that Movant's double jeopardy rights were violated when he was convicted and sentenced as to Count 1 to the lesser-included-offense of interstate domestic violence. (CV ECF No. 11 at 16; CV ECF No. 25 at 18); and,

3. Ground 3: The court lacked jurisdiction to impose a sentence as to Count 1. (CV ECF No. 11 at 18; CV ECF No. 25 at 25).

4. Ground 4: The government engaged in prosecutorial misconduct in 2014 through 2015 by failing to disclose and/or otherwise falsifying “the true facts” that a DNA report in their custody clearly excluded Movant as the perpetrator. (CV ECF No. 43 at 2-6).^[5]

R&R at 2-3 (citations and alterations in original).

On August 25, 2021, Magistrate Judge Reid issued a Report and Recommendation, recommending that the Court deny Movant's Amended Motion on the merits, decline to issue a certificate of appealability, and close this case. See generally R&R.

On November 29, 2021, Movant filed Objections after the Court granted his motion for extension of time and motion for leave to exceed the page limitation. See generally Objs.; (ECF Nos. 73, 77). On December 17, 2021, the Government filed its response to Movant's objections. See generally Objs. Resp. And, as noted earlier, after the Government filed its response, Movant filed Amended Objections, which the Court ordered stricken from the docket, and a motion for leave to file amended objections, which was denied. (ECF Nos. 85-88).

Now, Movant objects to the findings and recommendations of the Report and Recommendation as set forth below. See generally Objs.

II. LEGAL STANDARD

The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The Court “must consider de novo any objection to the magistrate judge's recommendation.” Fed.R.Civ.P. 72(b)(3). A de novo review is required if a party files “a proper, specific objection” to a factual finding contained in the report. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006). “It is critical that the objection be sufficiently specific and not a general objection to the report” to warrant de novo review. Id.

However, a party's objections are improper if they expand upon and reframe arguments already made and considered by the magistrate judge, or simply disagree with the magistrate judge's conclusions. See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1 (S.D. Fla. Sept. 6, 2018); see also Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is improper for an objecting party to . . . submit [ ] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple' when they file objections to a R & R.”) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992)).

When the objecting party has not properly objected to the magistrate judge's findings, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” See Keaton v. United States, No. 14-21230-CIV, 2015 WL 12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v. Berryhill, No. 17-CV-24263, 2019 WL 2254704, at *2 (S.D. Fla. Feb. 26, 2019) (stating that a district judge “evaluate[s] portions of the R & R not objected to under a clearly erroneous standard of review” (citing Davis v. Apfel, 93 F.Supp.2d 1313, 1317 (M.D. Fla. 2000))).

III. DISCUSSION

Movant raises thirty (30) objections to the Report and Recommendation. The Court notes that Movant groups his objections that appear to relate to the Report and Recommendation's findings on Ground 3 and Ground 4, identified above, with his objections to the Report and Recommendation's findings on Ground 1 and Ground 2, which advance ineffective assistance of counsel arguments. Specifically, Movant objects to Ground 3 and Ground 4 findings within the Report and Recommendation that incorporate or reference findings on Ground 1 and Ground 2 within the Report and Recommendation. Thus, the Court, like Respondent, groups Movant's individual objections where they advance such overlapping arguments relating to the same findings or recommendations in the Report and Recommendation, or where they relate to findings or recommendations dependent on earlier findings on Ground 1 or Ground 2:

1. Objection No. 1: Movant renews his previous objections, (ECF Nos. 39, 44), to Magistrate Judge Reid's January 21, 2020 Paperless Order, (ECF No. 38), and February 21, 2020 Paperless Order, (ECF No. 41).

2. Objection No. 2: Movant objects to the entirety of the Report and Recommendation because, according to Movant, it erroneously considers Movant's initial Reply (ECF No. 65), instead of his Amended Reply (ECF No. 67).

3. Objection Nos. 3 through 17: Movant claims that the Report and Recommendation misapplies governing caselaw under the Fifth Amendment's Double Jeopardy Clause and fails to find that kidnapping is a lesser included predicate offense constituting the element “crime of violence” within the offense of interstate domestic violence. Thus, the Report and Recommendation erroneously finds (1) that kidnapping and interstate domestic violence are separate offenses for purposes of the Double Jeopardy Clause, (2) his trial and appellate counsel were not ineffective for failing to raise this issue, (3)

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