United States District Court, W.D. Arkansas, Fayetteville Division
AMENDED  MEMORANDUM OPINION AND
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
pending before the Court is the Report and Recommendation
("R&R") (Doc. 136) filed on October 10, 2017,
by the Honorable Mark E. Ford, United States Magistrate Judge
for the Western District of Arkansas. The R&R concerns
James W. Bolt's Motion to Vacate under 28 U.S.C. §
2255 (Doc. 74). The Government filed a response to the Motion
(Doc. 87), and an evidentiary hearing was held on September
20-21, 2017. Ultimately, Magistrate Judge Ford's R&R
recommended denying Mr. Bolt's Motion. Then Mr. Bolt,
through his counsel of record, filed objections to the
R&R (Doc. 139), as well as certain exhibits (Doc. 142).
This prompted the Government to file a response to the
objections (Doc. 145).
portions of a magistrate judge's report and
recommendation draw specific objections, the district court
is obligated to review the contested findings or
recommendations de novo. See 28 U.S.C. §
636(b)(1). The court may then "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id. However,
absent a specific objection, a district court should review a
magistrate judge's report and recommendation for clear
error. Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.
the Court has undertaken a de novo review of the
case, including reviewing the audio transcript of the entire
two-day evidentiary hearing. The Court has paid particular
attention to those portions of the R&R to which Mr. Bolt
made specific objections and below rules on each objection in
PROCEDURAL OBJECTIONS CONCERNING THE EVIDENTIARY
Bolt has made two objections regarding how the Magistrate
Judge ruled on discovery disputes that arose prior to and
during the evidentiary hearing. Mr. Bolt argues, first, that
the Government failed to timely comply with a Court Order
(Doc. 104), which granted in part and denied in part Mr.
Bolt's request to take certain depositions and to require
the Government to produce certain documents. According to Mr.
Bolt, the Government chose to release the documents at issue
in "piecemeal" fashion and offered only "vague
but seemingly plausible explanations as to why they did not
produce the missing material." (Doc. 139, p. 2). As Mr.
Bolt puts it, this "piecemeal release process" by
the Government thwarted his ability to complete his own
discovery plan and "derailed [his] pre-hearing
preparation . . . ." Id. at 3. In the end, Mr.
Bolt maintains that the Government never provided him with
complete answers to certain of his requests for documents,
and he characterizes the communications the Government had
with him and with the Court as "deliberately misleading
and incomplete, " as well as "evasive."
Id. at 6.
Court has considered de novo the record of discovery
disputes between the parties pertaining to the Motion to
Vacate, including Mr. Bolt's Motion to Compel (Doc. 118)
filed on June 14, 2017, the Government's letter of June
29, 2017, that detailed the items produced to Mr. Bolt in
response to his discovery requests (Doc. 142-1), and the
Court's Order on the Motion to Compel (Doc. 123), entered
on July 14, 2017. After reviewing all the evidence and
considering the parties' arguments, the Court finds that
Mr. Bolt's objections as to how the Magistrate Judge
ruled on his discovery requests are
the Court finds that Mr. Bolt suffered no manifest injustice
or prejudice concerning his ability to prepare for the
hearing due to any of the discovery issues he raised. His
motions to compel filed prior to the hearing were fully
briefed and then ruled on appropriately by Magistrate Judge
Ford. Moreover, in the July 14, 2017 Order that denied as
moot Mr. Bolt's Motion to Compel following a telephonic
hearing, the Court observed that "counsel for the Movant
has expressed no objections to the Government's
efforts in providing the requested documentation." (Doc.
123) (emphasis added). In addition, Magistrate Judge Ford
granted Mr. Bolt multiple extensions of time to prepare for
the evidentiary hearing in light of his complaints about the
voluminous discovery in this case. But Mr. Bolt failed to file
any discovery motions or otherwise alert the Court that he
had discovery concerns at any point after his last motion
was ruled upon in July of 2017, and continuing to the
first day of the evidentiary hearing on September 20, 2017.
Although Mr. Bolt's counsel argued during the hearing
that he was still unsatisfied with the Government's
response to his most recent document request, see
Doc. 143, he made this argument too late, and the Court
refused to credit the delay tactic.
Bolt's second procedural objection is that the Magistrate
Judge did not permit him to make a record during the
evidentiary hearing concerning his "discovery
problems." (Doc. 139, p. 9). He claims:
The Court, after hearing only a small part of the discovery
dispute, foreclosed defendant by ruling that a Rule 37 should
have been filed earlier and since it was not, the issue was
closed in favor of the government. The inability to even make
a record for review by this court and perhaps the appellate
court is a fundamental unfairness to defendant.
Id. The Court has reviewed the transcript of the
evidentiary hearing and finds that the Magistrate Judge
permitted Mr. Bolt's counsel to make a last-ditch
objection that he was not as prepared for the hearing as he
would have liked, due to the alleged insufficiency of the
Government's document production, and that he requested
yet another continuance of the hearing. Counsel's
objection was properly overruled as untimely, and the
discovery issue was preserved in the record. Moreover, the
Court observes that Mr. Bolt's substantive complaints
about the quality and sufficiency of the documents provided
by the Government, as they are summarized in his objections
to the R&R, appear to be either patently frivolous or
completely tangential to the issues before the Court on the
Motion to Vacate. The objection is therefore
SUBSTANTIVE OBJECTIONS TO THE R&R
Bolt offers nine substantive objections to the findings and
recommendations in the R&R. His first and fourth
objections concern the finding that he waived any conflict of
interest that might have existed between himself and his
first trial attorney, Herb Southern. Mr. Southern presented
Mr. Bolt with a written waiver document at some point during
the representation, and the Magistrate Judge noted in the
R&R that "[b]y signing the document, Bolt
acknowledged that Southern and SA Cessario had a 'working
relationship' in an unrelated case in which Southern was
a material witness . . . ." (Doc. 136, pp. 3-4). Mr.
Bolt argues that his waiver was ineffective because he lacked
information at the time to adequately understand "just
how extensive the contacts between Southern and Cessario
were." (Doc. 139, p. 12). The Court has considered Mr.
Bolt's objection and agrees with the Magistrate Judge
that "the record fails to demonstrate the existence of
an actual conflict of interest between Southern, SA Cessario,
and Bolt." (Doc. 136, p. 22). The Court also agrees with
the Magistrate Judge that "any conflict of interest, or
even the appearance of a conflict of interest, was waived in
writing by Bolt" and that "[n]o legal authority has
been cited by Bolt to establish the existence of a conflict
of interest by virtue of Southern's relationship with SA
Cessario, and Bolt has failed to present any credible and
substantial evidence in support of his claim."
Id. These two objections as to conflict of interest
are therefore OVERRULED. Mr. Bolt's ninth objection
regarding the Court's failure to hold a hearing to
adjudicate the question of his counsel's alleged conflict
of interest is similarly OVERRULED for all the reasons cited
in the R&R. See Id. at 35.
Bolt's second objection is to the R&R's finding
that the Government did not breach its duties under the plea
agreement. The undersigned presided over Mr. Bolt's
sentencing and recalls the arguments that the
Government's attorney made as to the appropriate sentence
Mr. Bolt should face. In addition, the Court carefully
reviewed the transcript of the sentencing hearing to refresh
the Court's recollection. During the sentencing hearing,
Mr. Bolt's attorney at the time, Drew Miller, moved to
withdraw Mr. Bolt's guilty plea based on the
Government's lawyer's statements in open court about
Mr. Bolt's criminal history. Mr. Miller made a speaking
objection and charged the Government's counsel with
breaching the Government's promise to recommend that Mr.
Bolt be sentenced within the United States Sentencing
Guidelines. Now that the Court has reviewed the transcript of
the hearing, it finds that its decision to deny Mr.
Miller's motion to withdraw the guilty ...