1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Case No. 15-20008 

Plaintiff, 

v. Sean F. Cox 

U.S. District Judge 

 

TERRENCE LOMBARD, David R. Grand 

 U.S. Magistrate Judge 

Defendant. 

 / 

REPORT AND RECOMMENDATION TO DENY 

PETITIONER’S MOTION UNDER 28 U.S.C. § 2255 TO 

VACATE, SET ASIDE, OR CORRECT SENTENCE (ECF No. 77) 

Before the Court is pro se Petitioner Terrence Lombard’s (“Lombard”) Motion under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and memorandum in support. (ECF No. 

77.) The government filed a response (ECF No. 96), and Lombard filed a reply (ECF No. 101). 

The Honorable Sean F. Cox, who presided over Lombard’s case, referred the motion to the 

undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 

103.) 

I. RECOMMENDATION 

For the reasons set forth below, IT IS RECOMMENDED that Lombard’s Motion under 

28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 77) be DENIED. 

II. REPORT 

A. Background 

Lombard’s motion arises from his conviction for possession of heroin with intent to 

distribute and for conspiracy to possess heroin with intent to distribute. In its opinion upholding 

Lombard’s convictions, the Sixth Circuit provided the following description of the salient facts: 

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Agents of the Drug Enforcement Agency (DEA) and state and local police 

officers in Phoenix, Arizona, were investigating Kenneth Del Toro’s 

involvement in a narcotics conspiracy in which the conspirators transported 

drugs by putting them in PVC pipes, which in turn were hidden inside of the 

axles of semi-truck and trailer rigs. Through their investigation, agents 

learned that Del Toro planned to use this method to ship drugs to someone 

in Detroit, Michigan. Agents tracked Del Toro’s shipment to an industrial 

yard in Detroit, where they saw Del Toro remove PVC pipes from the axles 

of the trailer and hand them over to Lombard. Lombard put the pipes in the 

bed of his pickup truck. Agents followed Lombard and directed Roseville 

Police Officer Lieutenant Brian Shock, who was a member of the interdiction 

team, to stop Lombard after he committed several traffic violations. 

Lieutenant Shock observed grease-covered PVC pipes in the truck bed as he 

approached Lombard. Lieutenant Shock detained Lombard and called for 

assistance from an officer with a drug-sniffing dog. Royal Oak Police 

Officer Richard Chipman arrived about fifteen minutes later. His dog alerted 

on the truck near the pipes. Lombard was arrested and his truck impounded. 

Agents discovered approximately eleven kilograms of heroin hidden inside 

of the pipes. Later, agents executed a search warrant on Lombard’s house 

and found another eighty-one grams of heroin, a money counter, a digital 

scale, a suspected drug ledger, packaging materials, unlabeled pill bottles, 

and about $42,000 in cash. 

(ECF No. 73, PageID.962-63.) 

i. The Charges 

The charges in this case arise from the narcotics found in Lombard’s vehicle and residence. 

(ECF No. 751, PageID.11395.) Lombard was initially indicted on January 8, 2015. (ECF No. 1.) 

The indictment charged Lombard with the following: 

 Count One (1), Conspiracy to Possess with Intent to Distribute Heroin, in violation 

of 21 U.S.C. §§ 841(a)(1) and 846; and 

 Count Two (2), Possession with Intent to Distribute Heroin, in violation of 21 

U.S.C. § 841(a)(1). 

(ECF No. 1, PageID.1-2.) 

ii. Pre-Trial 

During the first 15 months following his initial appearance, Lombard was represented by 

three different attorneys (two of whom were appointed). Each of those attorneys successfully 

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moved to withdraw. However, in granting the third withdrawal motion on June 29, 2016, Judge 

Cox warned Lombard that his fourth attorney would likely be the last one that he would appoint. 

(ECF No. 85, PageID.1069) (“I'll appoint one more lawyer for you, sir. And if it doesn't work out 

with that lawyer, you're going to probably end up representing yourself or be with standby counsel, 

okay?”). About two weeks later, on July 14, 2016, attorney Robert F. Kinney, III was appointed. 

At an October 26, 2016 suppression hearing about three months later, when Mr. Kinney moved to 

withdraw based on Mr. Lombard’s purported dissatisfaction with his services, Judge Cox 

expressed his unwillingness to appoint another attorney and gave Lombard the choice of either 

proceeding represented by Mr. Kinney or proceeding pro se. 

What followed was an extended colloquy, mainly between Judge Cox and Lombard, but 

also with interjections from Mr. Kinney and the prosecutor (Mr. Cares), in which Judge Cox 

expressed his unwillingness to appoint new counsel and his strong recommendation that Lombard 

choose to proceed with Mr. Kinney’s representation rather than proceeding pro se: 

THE COURT: Okay. Do you understand that the rules of evidence govern 

what evidence may or may not be introduced at trial, that is, in representing 

yourself you must abide by these very technical rules, and they would not be 

relaxed for your benefit? Do you understand that? 

DEFENDANT LOMBARD: No, I don't understand that. Again, let the 

Court -- I don't -- I haven't practiced federal law, so I don't understand what 

you're saying applies to me. 

THE COURT: Okay. 

DEFENDANT LOMBARD: What I do understand is that I had Mr. Kinney 

appointed to me in July, which I haven't seen him but maybe three times 

since then. Now, the Court stated to me that Mr. Kinney had family issues, 

and I hadn't seen him for two months. I asked Mr. Kinney to file some 

discovery motions for me. 

THE COURT: You know what? This is the same old story I've heard with 

every attorney that's represented you, starting with Ms. Woods. 

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MR. KINNEY: Well, it's -- I have a paper trail and it's nothing -- it's nothing 

-- 

THE COURT: I'm going to ask the question again. Do you understand that 

there's rules of evidence that govern what evidence may or may not be 

introduced at trial, that in representing yourself you must abide by these rules 

of evidence. Do you understand that? 

DEFENDANT LOMBARD: No, I do not. 

THE COURT: The rules of evidence -- have you ever been -- I don't know. 

Has he been involved in prior evidentiary hearings. I suspect sometime he 

might have. 

MR. CARES: I don't know one way or the other, Your Honor. 

THE COURT: Okay. Well, I'm going to tell you, and you probably 

understand and know exactly what I'm talking about. It's not your first trip 

down the criminal justice system road. There are rules of evidence, and if 

you try the case on your own, you represent yourself, you're going to have to 

file [sic] them. Do you understand that those rules govern the way a criminal 

action is tried in federal court, and you're going to be bound them if you 

represent yourself? Do you understand that? 

DEFENDANT LOMBARD: And again, no, I do not. 

THE COURT: And that's how it's going to be. I must advise you, Mr. 

Lombard, that in my opinion a trained lawyer like Mr. Kinney, who has been 

practicing for 30 years in the area of criminal defense, very successful, would 

defend you far better than you could defend herself. I think it is unwise of 

you to try to represent yourself. You are not familiar with the law. You're 

not familiar with the court procedure. You are not familiar with the rules of 

evidence. Therefore, I strongly urge you not to try to represent yourself. 

And again, is it your decision not to have Mr. Kinney represent you? 

DEFENDANT LOMBARD: And again, I'm not trying to represent myself. 

THE COURT: Okay. 

DEFENDANT LOMBARD: But I do need someone to advocate for me. 

THE COURT: Okay. But do you wish to have Mr. Kinney continue to 

represent you? 

DEFENDANT LOMBARD: If Mr. Kinney wishes to advocate for me, and 

we can come to a norm, I have no problem. But for him to tell me that I have 

to file motions myself, I just feel like that's a conflict of interest. 

THE COURT: I'm not sure I understand what you're saying. 

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DEFENDANT LOMBARD: What I'm saying is, again, I've seen Mr. Kinney 

maybe three times, which Mr. Kinney had some family issues when he first 

was appointed to me in July. I hadn't seen or talked to him until September. 

And when I asked him to file certain motions, he informed me that I can file 

them myself. I feel like that's a conflict of interest. 

(ECF No. 72; PageID.914-17). 

A comment by Mr. Kinney also shed further light on the nature of the discovery motion 

that Lombard wished Mr. Kinney to file: 

MR. KINNEY: The motion that Mr. Lombard is talking about is a motion 

that he filed for discovery. And I think it would be helpful if I could get an 

answer from either Mr. Cares or the Court. My position to Mr. Lombard is 

once we -- I don't even have to ask for discovery, but if I make the demand, 

I don't have to file any motions. It's Mr. Cares' obligation to give me that 

kind of material. 

THE COURT: Brady material, absolutely. We're all clear on that, correct? 

MR. KINNEY: And Jencks. 

THE COURT: Right. 

MR. CARES: That's right. And then as far as rule 16 discovery, the 

government had received a general request from previous counsel. As the 

Court has indicated, this is -- Mr. Kinney is at least the third counsel, if not 

the fourth counsel. And so we have provided our discovery that is required 

under rule 16, and again, as I said, as it pertains to the Brady material, if 

there's other documents that we are obligated to provide under rule 16 that 

we may not necessarily be obligated to provide under Brady or the Jencks, 

we will provide them. I think they have all been provided so far, but I will 

again check with Mr. Kinney to make sure he has received all the discovery 

as well. 

(Id., PageID.919-20.) 

Thus, it was clear from the record that Lombard’s purported dissatisfaction with Mr. 

Kinney was based largely on the number of times Mr. Kinney saw him in person during the first 

three months following his appointment, and on Mr. Kinney’s refusal to file a discovery motion 

that he deemed unnecessary and unwarranted. (Id.). Judge Cox rejected those as legitimate bases 

for appointing Lombard what would be his fifth attorney in this case, sticking to the warning he 

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had previously given to Lombard, that Mr. Kinney would be the last attorney the Court would 

appoint to represent him in this case: 

THE COURT: Okay. Just so the record is clear, Mr. Lombard was initially 

represented by Ms. Woods, who I believe was retained. That didn't work 

out. There was a motion to withdraw. I appointed Ben Gonek, a very wellknown, with all respect, criminal defense lawyer. That didn't work out. 

There was a motion to withdraw. I appointed Otis Culpepper, a nationallyrenowned criminal defense lawyer. That didn't work out. There was a 

motion to withdraw. And I appointed Mr. Kinney. And I noted at that time 

that that would be the final attorney that I would appoint for Mr. Lombard. 

(Id., PageID.920.) 

Although Lombard continued to object to Judge Cox’s ruling, given that his only options 

were to (1) proceed with Mr. Kinney or (2) proceed pro se, Lombard ultimately did not opt to 

proceed pro se, and Mr. Kinney continued to represent him during trial. (Id., PageID.918.) 

iii. Jury Trial, Conviction, and Sentence 

Lombard’s case proceeded to trial, with Mr. Kinney representing him throughout. The trial 

commenced on November 16, 2016, and on November 18, 2016 a jury convicted Lombard in 

Count One of Conspiracy to Distribute or Possess with Intent to Distribute Heroin, in violation of 

21 U.S.C. §§ 841(a)(1) and 846, and in Count Two of Possession with Intent to Distribute Heroin, 

in violation of 21 U.S.C. § 841(a)(1). The verdict form for each count first asked the jury whether 

they found Lombard “guilty” or “not guilty,” and then, if they found him guilty, how much heroin 

“was involved in the conspiracy as a whole.” (ECF No. 51.) For each of the two Counts, there 

was an option to find that the quantity of heroin involved was “1000 grams (1 kilogram) or more,” 

100 grams or more but less than 1,000 grams (1 kilogram),” or “less than 100 grams.” (Id.) In 

addition, the question as to Count One included the option, “none.” (Id.) 

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For each Count, the jury found Lombard was guilty, and that the amount of heroin involved 

was 1,000 grams or more. On March 15, 2017, Judge Cox sentenced Lombard to 210 months, 

running concurrently, followed by five years of supervised release, and a $200 special assessment. 

iv. Appeal and § 2255 Motion 

On March 31, 2017, Lombard appealed his conviction and sentence to the United States 

Court of Appeals for the Sixth Circuit. On March 19, 2018, the Sixth Circuit affirmed Lombard’s 

conviction and sentence. (ECF No. 73.) The Sixth Circuit determined that the trial court had not 

erred in rejecting Lombard’s motion to suppress, finding that (1) his Fourth Amendment rights 

were not violated by the stop of his vehicle, its subsequent search, and the seizure of the pvc pipes 

filled with heroin, and (2) the trial court properly applied a sentencing enhancement under § 

2D1.1(b)(12) for maintaining a premises for the purpose of distributing controlled substances. 

(Id.) 

Lombard then filed the instant § 2255 motion on October 18, 2019. (ECF No. 77). In his 

motion, Lombard raises three issues, none of which were alleged in his appeal: (1) Lombard’s 

Sixth Amendment right to effective assistance of counsel was violated when he was “forced” to 

proceed with Mr. Kinney as his trial counsel at the suppression hearing or proceed pro se, which 

violation was repeated at trial; (2) Mr. Kinney was ineffective for a variety of different reasons; 

and (3) he should be granted an evidentiary hearing with Judge Cox recusing himself from that 

matter. 

B. Legal Standards

Under 28 U.S.C. § 2255, a prisoner sentenced by a federal court may “move the court 

which imposed the sentence to vacate, set aside or correct the sentence” based on a claim “(1) ‘that 

the sentence was imposed in violation of the Constitution or the laws of the United States;’ (2) 

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‘that the court was without jurisdiction to impose such sentence;’ (3) ‘that the sentence was in 

excess of the maximum authorized by law;’ or (4) that the sentence ‘is otherwise subject to 

collateral attack.’” Hill v. United States, 368 U.S. 424, 426-427 (1962). To prevail on a § 2255 

motion, “a petitioner must demonstrate the existence of an error of constitutional magnitude which 

has a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” 

Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). A § 2255 petitioner seeking to set 

aside his sentence has the burden of establishing his case by a preponderance of the evidence. 

McQueen v. U.S., 58 Fed. App'x 73, 76 (6th Cir. 2003). 

C. Analysis 

1. Denial of Request for New Counsel 

In his § 2255 motion, Lombard first argues that Judge Cox violated his Sixth Amendment 

rights by refusing to grant his request for new counsel in place of attorney Kinney.1

 

a. Procedural Default 

Before the Court addresses the merits of Lombard’s contention that he was improperly 

denied new counsel, it addresses the government’s argument that Lombard procedurally defaulted 

this argument by failing to raise it with the Sixth Circuit in his direct appeal. As one district court 

within the Sixth Circuit very recently explained: 

Except for a claim of ineffective assistance of counsel, a federal prisoner's 

failure to raise a claim on direct appeal results in a procedural default of that 

claim. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United 

States, 269 F.3d 693, 698 (6th Cir. 2001). For a federal prisoner to obtain 

1 The Court notes the government’s argument that Lombard waived his Sixth Amendment right to 

the assistance of counsel at trial due to his “persistent, unreasonable demand for dismissal of 

counsel and appointment of new counsel ... is the functional equivalent of a valid waiver of 

counsel.” United States v. Green, 388 F.3d 918, 921–22 (6th Cir. 2004) (quoting United States v. 

Henderson, No. 98–5216, 1999 WL 313842, at *2 (6th Cir. May 3, 1999)). However, because the 

Court finds that Lombard’s motion should be rejected on the merits, it declines to decide whether 

his conduct amounted to a waiver.

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review of a defaulted claim in a § 2255 motion, he must show cause to excuse 

his failure to raise the claim previously and actual prejudice resulting from 

the alleged violation. Bousley, 523 U.S. at 622; Peveler, 269 F.3d at 698-

700. If a Petitioner cannot show cause and prejudice, he may be able to 

obtain review, if his case falls within a narrow class of cases permitting 

review in order to prevent a fundamental miscarriage of justice, such as when 

new evidence shows that a constitutional violation has probably resulted in 

a conviction of one who is actually innocent. Bousley, 523 U.S. at 622-23, 

citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986). 

Prather v. United States of America, No. 3:17-CR-132, 2021 WL 1721848, at *5 (E.D. Tenn. Apr. 

30, 2021). 

In Prather, the court concluded, “Petitioner has not attempted to show cause or prejudice 

for his failure to raise this claim on direct appeal, nor has he attempted to show that he is actually 

innocent, thus his claim is procedurally defaulted.” Id. The same analysis applies here. Lombard 

does not dispute that he failed to raise an objection to Jude Cox’s refusal to appoint new counsel 

in place of attorney Kinney on his direct appeal to the Sixth Circuit. Nowhere in his motion does 

Lombard even acknowledge his default, much less present a justification for it. Nor in his reply 

brief did Lombard provide any justification for failing to raise the issue on direct appeal. (ECF 

No. 101.). Thus, Lombard did not demonstrate cause for failing to raise his claim regarding Judge 

Cox’s decision not to replace Kinney2

 with a fifth attorney, and he did not show “actual 

innocence.” Accordingly, Lombard procedurally defaulted that particular claim. Nevertheless, 

for the sake of completeness, the Court will also address Lombard’s claim on the merits. 

b. Inquiry into Lombard’s Dissatisfaction with Appointed Counsel Under 

Benitez v. United States 

Lombard’s claim regarding Judge Cox’s decision not to appoint an attorney in Kinney’s 

place relies on a limited proposition, set forth in Benitez v. United States, that where a defendant 

2

 To be clear, this particular claim does not concern whether Mr. Kinney provided effective 

assistance in terms of his actual representation of Lombard. Rather, it only challenges Judge Cox’s 

denial of Lombard’s request to replace Kinney with another attorney. 

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moves for new counsel and the judge denies that motion without inquiring into the reasons for the 

request, his Sixth Amendment right to counsel has been violated. See Benitez v. United States, 

521 F.3d 625, 634 (6th Cir. 2008). Here, however, because Lombard set forth the basis of his 

dissatisfaction with his appointed counsel during the hearing in question, no Sixth Amendment 

violation occurred. 

In United States v. Iles, the Sixth Circuit set forth the general framework for evaluating a 

defendant’s claim that he was improperly denied substitute counsel. Iles proceeds from the 

statement that “[t]he right to counsel of choice, unlike the right to counsel, however, is not 

absolute.” United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (emphasis in original). Thus, 

an indigent defendant who has been granted appointed counsel “has no right to have a particular 

attorney represent him and therefore must demonstrate ‘good cause’ to warrant substitution of 

counsel.” Id.

Lombard does not contend he should have been provided any particular attorney. Instead, 

he relies on Benitez, which focuses on the more general principle underlying Iles, that “where a 

district court is on notice of a criminal defendant's dissatisfaction with counsel, the court has an 

affirmative duty to inquire as to the source and nature of that dissatisfaction.” Benitez, 521 F.3d at 

634. But, contrary to Lombard’s interpretation, this does not mean the trial court must engage in 

an extensive back-and-forth with the defendant, or even ask him any particular questions. Rather, 

the “district court's inquiry is adequate when it allows ‘all of the interested parties to present their 

respective evidence and arguments.’ ‘[T]o meet this requirement, the district court simply must 

allow a defendant the opportunity to explain the attorney-client conflict as he perceives it.’” United 

States v. Chapman, 796 F. App'x 873, 878 (6th Cir. 2019) (internal citations omitted). 

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With the proper standards in mind, it is clear that this case does not present a Benitez issue. 

In Benitez, the defendant indicated through his counsel at his sentencing hearing that he “did not 

wish to be represented by [his then-attorney].” The trial judge then merely inquired into whether 

Benitez understood the burdens he would face if he chose to represent himself, and did not inquire 

into the reasons for his dissatisfaction with counsel. Ultimately, Benitez continued through 

sentencing with that counsel. On appeal, the Sixth Circuit held that trial counsel’s vague 

sentencing hearing statement “triggered the [trial] court's obligation to inquire further” “to 

determine the reasons for [Benitez’s] dissatisfaction with his current counsel.” Benitez, 521 F.3d 

at 632, 635 (6th Cir. 2008) (quoting Iles, 906 F.2d at 1131). The Sixth Circuit also noted that 

Benitez, due to his limited English proficiency, was unable to explain the basis of his 

dissatisfaction with his counsel on his own, without the aid of explicit judicial inquiry. Thus, the 

Sixth Circuit concluded that the trial court’s failure “to inquire into the source and nature of 

Benitez's dissatisfaction [] violated [Benitez’s] Sixth Amendment right to counsel.” Id. at 635-36. 

Lombard’s case is distinguishable because, as shown above, he directly and clearly 

expressed the reasons for his dissatisfaction with his counsel to Judge Cox, explaining he was 

upset that Kinney had only visited him three times in the three months since he had been appointed, 

and that Kinney would not file the discovery motion Lombard requested. See supra at 3-5. Kinney 

gave even more context, explaining that he told Lombard he would not file the discovery motion 

because it was unnecessary and unwarranted. See supra at 5. In short, because Lombard clearly 

articulated the “source and nature” of his dissatisfaction with counsel to Judge Cox, there is simply 

no Benitez issue here. 

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c. Lombard’s Dissatisfaction with Appointed Counsel under Iles Test 

Lombard’s argument fairs no better under Iles, which set forth the general test for 

determining whether a criminal defendant with appointed counsel was improperly denied 

substitute counsel. See Iles, 906 F.2d at 1130 n. 8. The Sixth Circuit has recently stated the four 

factors of the Iles test as: 

(1) the timeliness of the motion; (2) the adequacy of the district court's 

inquiry into the matter; (3) the extent of the conflict between the party and 

the attorney and whether the conflict between the two was so great that it 

resulted in a total lack of communication, preventing an adequate defense; 

and (4) the balancing of these three factors with the public's interest in the 

prompt and efficient administration of justice. 

Chapman, 796 F. App'x at 876. 

Of these factors, timeliness carries neutral weight, but the other three factors strongly favor 

denying Lombard’s motion. First, as to timeliness, the government argues that Lombard’s motion 

for substitute counsel was untimely because it would have required postponing the trial date. 

While an adjournment almost certainly would have resulted from granting Lombard’s request, that 

alone would not be grounds to deny it had the circumstances warranted such drastic relief. Rather, 

the Court looks to whether a defendant’s request for new counsel could have been raised at an 

earlier proceeding but was instead unreasonably delayed by the defendant. See, e.g. United States 

v. Whitfield, 259 F. App'x 830, 834 (6th Cir. 2008). Here, it appears there was no significantly 

earlier time when Lombard could have raised his dissatisfaction with Kinney; Lombard raised that 

issue promptly after Kinney rejected the notion of filing the discovery motion Lombard had 

requested, and only about three months had elapsed between Kinney’s appointment and Lombard’s 

request for new counsel. Thus, the relative timeliness of Lombard’s request for substitute counsel 

is a neutral factor. 

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The second factor, the adequacy of the district court’s inquiry into the basis of the 

defendant’s dissatisfaction, requires only that the district court “allow a defendant the opportunity 

to explain the attorney-client conflict as he perceives it.” United States v. Marrero, 651 F.3d 453, 

465 (6th Cir. 2011). For all of the reasons discussed above, Lombard clearly not only had such an 

opportunity, but took full advantage of it, explaining the reasons why he wished the court to replace 

attorney Kinney. See Chapman 796 F. App'x 880-81. 

The third factor is whether the conflict between the defendant and his counsel was so great 

as to cause a “total breakdown in communication.” Generally this inquiry focuses not on whether 

“the frequency of such contact may [] have been satisfactory to [the Defendant]” but whether “the 

extent of the conflict between the attorney and client ... was so great that it resulted in a total lack 

of communication preventing an adequate defense.’” Id. at 881 (emphasis in original) (internal 

citations omitted). Lombard’s complaint is clearly at odds with this principle because in large part 

he challenged “the frequency” of Kinney’s in-person visits, noting that the two only met in person 

three times. Moreover, Lombard’s relationship with attorney Kinney seems to have been 

functionally a productive one. Kinney filed a motion to suppress that none of Lombard’s prior 

attorneys had filed. (See ECF No. 30). And, while Kinney did not file the discovery motion 

Lombard had requested, that was not due to a lack of communication or neglect by Kinney. Rather, 

as Kinney explained to Lombard, his decision was based on a reasoned determination that the 

motion was unnecessary and unwarranted as it would merely have required the disclosure of 

material that the government was already required to disclose. (See ECF. No. 42, PageID.293). In 

sum, while Kinney may not have provided Lombard with the frequency of personal interaction 

Lombard desired, evidence shows there was ongoing, relatively fruitful communication between 

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the two of them. Because there was far from a total lack of communication, this factor weighs 

against Lombard. 

Lastly, when balancing the first three factors against “the public’s interest in the prompt 

and efficient administration of justice[,]” the public interest clearly favors upholding Judge Cox’s 

decision. Judge Cox had already granted Lombard three prior substitutions, and Mr. Kinney was 

Lombard’s third court-appointed (and fourth overall) attorney. Lombard has not explained what 

granting a fifth attorney would have allowed him to accomplish that his other four could not. On 

the other hand, the public has an interest in the prompt administration of justice, which was already 

being impeded by Lombard’s seriatim requests for new counsel. Particularly considering how 

weak Lombard’s complaints were about Kinney’s representation, the public’s interest in avoiding 

further delay strongly outweighs the other factors. 

Because an analysis of the Iles factors strongly supported denying Lombard’s request to 

replace Kinney with a fifth attorney, Judge Cox’s decision to require Lombard to either proceed 

represented by Kinney or proceed pro se did not violate his Sixth Amendment right to the 

assistance of counsel. 

2. Ineffective Assistance of Counsel at Trial 

Lombard next presents several instances of what he alleges were ineffective assistance of 

counsel both pre-trial and at trial. These include his counsel’s failure to i) properly challenge the 

warrant at the suppression hearing; ii) challenge the agent’s voice identification at trial; and iii) 

mount a Daubert challenge to the government’s lab identification of the substance found in 

Lombard’s truck’s bed and home by introducing testimony of a competing expert witness. 

A petitioner seeking to establish ineffective assistance of counsel must satisfy the standards 

set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

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First, he must show that his counsel’s performance was deficient. Strickland, 466 U.S. at 687. 

“This requires showing that counsel made errors so serious that [he] was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Counsel’s performance is 

deficient only where it falls “below an objective standard of reasonableness.” Id. at 687-88. 

Judicial scrutiny of counsel’s performance “must be highly deferential.” Id. at 689. A reviewing 

court should avoid second-guessing counsel and must ensure that “every effort is made to eliminate 

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. 

Second, the petitioner must show that counsel’s deficient performance prejudiced the 

defense. Id. at 687. To satisfy the prejudice prong, a petitioner must demonstrate “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. Applying these principles, it is clear that Lombard’s motion fails to establish 

ineffective assistance of counsel. 

a. Failure to Request a Franks Hearing 

Lombard’s first argument is that his counsel was ineffective at the suppression hearing by 

failing to request a Franks hearing to challenge the affidavit of Detective Shock, which supported 

the warrant for the search of Lombard’s house where heroin was found.3

 (ECF No. 77, 

3 At the outset, the Court notes that Lombard’s argument ignores that agents also found roughly 

11 kg of heroin in his truck, and, that for purposes of both adjudication of guilt and sentencing, 

any amount over 1 kg of heroin is treated similarly. Moreover, as discussed above, see supra at 7, 

the Sixth Circuit already determined that the stop of Lombard’s truck, the search of the truck bed, 

and the seizure of the heroin were valid. Thus, Lombard’s arguments about the subsequent search

of his home are immaterial; nothing about counsel’s failure to challenge the warrant would have 

called into question the validity of the stop, search, and seizure of drugs from his truck; the fact 

that the drugs seized were in fact heroin; or the fact that Lombard gained possession of the drugs 

pursuant to a conspiracy consisting of at least him and Del Toro. Since that evidence amply 

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PageID.978.) Under Franks v. Delaware, a defendant is permitted to challenge an affidavit 

underlying a search warrant where: 

the defendant makes a substantial preliminary showing that a false statement 

knowingly and intentionally, or with reckless disregard for the truth, was 

included by the affiant in the warrant affidavit, and if the allegedly false 

statement is necessary to the finding of probable cause, the Fourth 

Amendment requires that a hearing be held at the defendant's request. 

Franks v. Delaware, 438 U.S. 154, 155–56 (1978). 

Lombard made no such showing here that would have warranted a Franks hearing because 

he presented no evidence that Detective Shock made any false statement with either intentional or 

reckless disregard for the truth. Nor were several of the alleged untruths necessary to the finding 

of probable cause in the warrant. 

Lombard’s argument also lacks merit because it relies on a factual distortion, which he 

repeats throughout his motion. Lombard’s 2013 Dodge Ram, the truck in which the PVC pipes 

full of narcotics were discovered, was seized and then returned to Lombard with a Covenant Not 

to Sue. Part of the Covenant states that the reason for the truck’s return was that there was “not 

[a] supportable basis to show a connection to an illegal activities/narcotic incident, or part of a 

negotiated settlement.” The Covenant later stated that it “may not be used in any criminal 

proceeding for any purpose, and is meant only to show a satisfaction of all civil claims[.]” ECF 

No. 77, PageID.998. Lombard repeatedly selectively quotes the Covenant, arguing that it states 

that there was no “connection to an illegal activities/narcotic incident” and omitting the qualifier 

“or part of a negotiated settlement” as well as the later disclaimer that the Covenant “is meant only 

to show a satisfaction of all civil claims[.]” Moreover, the Sixth Circuit has already found that the 

evidence presented at trial included that: (1) Del Toro gave the PVC pipes which held the heroin 

supported Lombard’s convictions and sentence, Lombard’s instant argument fails to show 

prejudice. 

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to Lombard, and that “Lombard put the pipes in the bed of his pickup truck” and drove off; (2) 

Lombard was stopped while driving the truck and that a drug-sniffing dog “alerted on the truck 

near the pipes;” and (3) after Lombard’s truck was impounded, agents “discovered approximately 

eleven kilograms of heroin hidden inside of the pipes.” (ECF No. 73, PageID.962-63.) Thus, 

Lombard has not shown that the Covenant operated to do anything other than release his vehicle 

as part of a settlement. And, in light of the other evidence, there is no likelihood that any ambiguity 

in the Covenant’s verbiage would have changed the outcome of Lombard’s conviction. 

Next, Lombard argues that there were several discrepancies in the evidence underlying the 

search warrant. Specifically, Lombard points to a discrepancy between dates on the reports, an 

email between two investigators, in which Special Agent Ryan McCormick told Agent Grady 

Fisher that “If you let me know what you put in the reports, I’ll make sure mine is a copy of it” 

(ECF. No. 77, PageID.1000), and detective Shock’s statement at the suppression hearing that 

“[i]mmediately before the stop, I watched [Lombard’s truck], but I didn't have surveillance on it.” 

(ECF No. 72, PageID.931). 

None of these purported inconsistencies indicate any sort of falsehood. Lombard never 

explains how the first issue, regarding date discrepancies in the reports, indicates an intentional 

falsehood rather than just an innocent mistake. The second issue, in context of the e-mail Lombard 

draws Agent McCormick’s statement from, is merely an anodyne statement by investigators 

comparing their notes. The third issue, of Detective Shock’s statement at the suppression hearing, 

is simply Detective Shock stating that, while he saw Lombard’s truck before stopping it, he didn’t 

have a sustained, uninterrupted view of it while pursuing him. His further testimony clarified that 

he did see it for a “short period of time” and observed Lombard make two left turns without 

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signaling. Id. Thus, all these purported inconsistencies Lombard raises are either innocent 

mistakes or not in fact inconsistencies at all. 

Lastly, Lombard Points to the fact that the “reliable source” pointed to in the warrant was 

another member of law enforcement, Special Agent McCormick, and that, according to the 

warrant, Special Agent McCormick had indicated that “a subject known as Terrance PaulMontazes Lombard” was “trafficking [] large quantities of cocaine,” when, according to Lombard, 

“there was absolutely no evidence of cocaine trafficking . . .” (ECF No. 77, PageID.978, 980.) 

However, this statement was not necessary to the finding of probable cause. United States v. 

Mastromatteo, 538 F.3d 535, 545 (6th Cir. 2008) (holding that the “movant must also show that 

the allegedly false statements were necessary for the magistrate’s determination of probable 

cause.”). Even without the statement in question, the warrant contained sufficient probable cause 

as it relied on the drugs found in the truck and the detective’s knowledge, based upon his 

experience, that someone transporting drugs would often have additional contraband stored in his 

home. 

Because Lombard has not set forth any reasonable probability that false statements 

necessary to the finding of probable cause were knowingly, intentionally, or recklessly made by 

an affiant in the warrant affidavits, he fails to demonstrate that a Franks hearing would have been 

granted had his counsel requested one, or that an evidentiary hearing is required to resolve his 

claim. Thus, Lombard fails to demonstrate that his counsel’s performance was deficient under 

Strickland, insofar as counsel failed to request a Franks hearing. 

b. Failure to Challenge Agent’s Voice Identification 

Next, Lombard argues that he was provided ineffective assistance of counsel because his 

counsel failed to introduce voice exemplars to challenge audio recordings, based on an allegation 

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that the audio recordings were not of his voice. However, even if the voice on the wiretap 

recordings was not Lombard’s, there is no showing that this error was prejudicial to his defense. 

Assuming that it was actually some other individual on the wiretap recordings, then the 

facts of the case would show something like this: an unknown individual was heard discussing the 

shipment of drugs with Del Toro and setting forth a time and place for those drugs to be handed 

over. Investigators observed Lombard’s vehicle, a 2013 Dodge Ram, at the site mentioned in the 

wiretap. Then, they saw Lombard place PVC pipes his vehicle. After the vehicle, driven by 

Lombard, pulled away, they followed it and observed several traffic violations.4 After stopping 

the vehicle, Detective Shock saw the aforementioned PVC pipes in the truck bed, and a drugsniffing dog was called. The dog then alerted to the presence of narcotics, which were ultimately 

found in the PVC pipes in the bed of the truck, along with the actual phone used in the calls to Del 

Toro that appeared on the wiretap. 

Thus, even if Lombard could prove it was someone else’s voice on the wiretap, 

investigators still had reasonable suspicion for the stop and probable cause for the search of the 

truck, and the drugs found in his truck, coupled with the other information in the warrant, provided 

sufficient probable cause to search Lombard’s home. 

Similarly, there was sufficient evidence to uphold Lombard’s conviction of conspiracy, 

even without an identification of his voice on the wiretap. Lombard appeared at the time and place 

indicated by Del Toro. He was seen taking the pvc pipes, which were filled with heroin, and 

4

 In Lombard’s appeal, the Sixth Circuit noted that the observed traffic violations alone, even 

without the foregoing knowledge of Lombard’s connection to drug trafficking, would have 

provided reasonable suspicion to stop Lombard and call the drug-sniffing dog which then alerted 

to the presence of narcotics. See ECF No. 73, PageID.964. 

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putting them in his truck. Then, once he was stopped, the cell phone used to communicate with 

Del Toro was found in the vehicle he was in. 

At most, a successful challenge to Lombard’s voice identification would have established 

that an unknown third party was also involved in the conspiracy, not that Lombard was not a 

member of the conspiracy. Thus, even a successful challenge to the identification of Lombard’s 

voice on the wiretap would have had no effect on the case’s outcome, and trial counsel’s failure to 

ask for a voice exemplar did not prejudice Lombard’s defense. There was thus no violation of 

Lombard’s right to effective assistance of counsel under Strickland. 

c. Failure to Challenge Field Test 

Lombard’s last argument as to ineffective assistance of counsel is that his attorney should 

have challenged the field test on the substance found in the pvc pipes in his vehicle, both on a 

motion to suppress and at trial. This argument also fails to show prejudice because, even assuming 

its correctness, there is no reasonable probability that it would have changed the outcome of the 

case. 

Lombard was charged under 21 U.S.C. § 841(a)(1), which makes it a crime to 

“manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, 

a controlled substance,” and 21 U.S.C. § 846, which criminalizes a conspiracy to do the same. 

Lombard notes that the Covenant document indicates that “suspected cocaine” had been seized 

from Lombard’s truck. (ECF No. 77, PageID.998.) Indeed, during trial, the jury was told that 

initially the drugs found in Lombard’s truck were identified as suspected cocaine in a field test, 

but that they later tested positive for heroin in the lab. (ECF No. 68, PageID.571, 638.) 

The two charges Lombard was convicted of involved heroin, but not cocaine. (ECF No. 

51.) Lombard now argues that since “basic chemistry” can explain differences between the two 

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substances, Kinney provided ineffective assistance when he “failed to properly advocate for 

[Lombard].” (ECF No. 77, PageID.982.) But Lombard never explains how Kinney should have 

“properly advocated” for him with respect to the field test. Assuming Lombard is suggesting that 

Kinney should have argued, either in a motion to suppress or at trial, that the initial field test tainted 

everything that followed – the seizure of what ultimately turned out to be heroin from the truck, 

the issuance and execution of the search warrant which turned up more heroin, that argument lacks 

merit. Lombard cites no precedent – and the Court can find none – to substantiate that mistaking 

one “suspected” controlled substance in a warrant affidavit for another actual controlled substance 

would justify suppression of the warrant. Indeed, merely showing that the field test identified one 

illegal controlled substance instead of another would not have changed any actions taken by the 

agents, or any information presented to the jury. Either way the affidavit correctly stated that a 

controlled substance was found in Lombard’s vehicle and based on that and the other information 

stated in the warrant, agents suspected they would find more controlled substances in Lombard’s 

home. 

Furthermore, even if the Court accepts that the warrant should have been suppressed, it 

would have made no difference to Lombard’s guilt or his sentence. Lombard never explains why 

the incorrect initial field test would justify suppression of the heroin found in his truck. And, as 

explained above, the 11 kg. of heroin seized from his truck was sufficient to support Lombard’s 

guilt on both Counts and to subject him to the most stringent sentencing guidelines for those 

charges. 

In short, Lombard fails to show that a vigorous challenge to the initial field test would have 

led to a reasonable probability of a different outcome in his case. Thus, Lombard fails to 

demonstrate any prejudice that would entitle him to relief on his instant § 2255 motion. 

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3. New Evidentiary Hearing and Recusal of Judge Cox 

Finally, Lombard argues that, based on the foregoing arguments, a new evidentiary hearing 

and discovery should be granted, and Judge Cox should recuse himself for that proceeding. These 

requests lack merit. As discussed above, Lombard has not demonstrated the type of factual dispute 

that would justify holding an evidentiary hearing. Lombard argues no factual dispute underlying 

Judge Cox’s refusal to grant substitute counsel, but instead argues that that decision was faulty as 

a matter of law. While some of Lombard’s arguments regarding ineffective assistance of counsel 

contain factual elements, as explained above, even assuming Lombard’s version of them, he failed 

to show a reasonable probability of a different outcome in his case. Thus, Lombard has not shown 

any reason for the Court to grant a new evidentiary hearing. 

As far as his request for discovery is concerned, the evidentiary bar for demonstrating a 

right to new discovery is low. District courts may grant “discovery in a habeas proceeding if the 

‘petitioner presents specific allegations showing reason to believe that the facts, if fully developed, 

may lead the district court to believe that federal habeas relief is appropriate.’” Johnson v. Mitchell, 

585 F.3d 923, 934 (6th Cir. 2009) (quoting Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001)). 

However, “bald assertions and conclusory allegations do not provide sufficient ground to warrant 

requiring the state to respond to discovery or to require an evidentiary hearing.” Stanford v. Parker, 

266 F.3d 442, 460 (6th Cir. 2001) (internal quotations omitted). Furthermore, allowing new 

discovery is inappropriate “where “[t]he discovery sought by [the claimant] would not resolve any 

factual disputes that could entitle him to relief, even if the facts were found in his favor.” Id. at 460 

(6th Cir. 2001). Again, the Court has explained above why the facts alleged by Lombard are not 

reasonably likely to result in a different outcome; indeed, they would not change the outcome at 

all, as they would have no material effect on his guilt or his sentence. 

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In sum, Lombard’s request for a new hearing and discovery should be rejected. 

Furthermore, because there is no need for a new evidentiary hearing or discovery, there would be 

no occasion for Judge Cox to recuse himself.5 

D. Conclusion 

For the foregoing reasons, IT IS RECOMMENDED that Lombard’s Motion under 28 

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 77) be DENIED. 

E. Certificate of Appealability 

When considering a § 2255 motion, this Court “must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules Governing 

Section 2255 Proceedings for the United States District Courts. A petitioner must obtain a 

certificate of appealability (“COA”) before he may appeal the denial of his § 2255 motion. 28 

U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial showing 

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In cases like Lombard’s where the 

petitioner’s claims are rejected on their merits, a movant “must demonstrate that reasonable jurists 

would find the district court’s assessment of the constitutional claims debatable or wrong” to 

warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, for all of the reasons stated 

above, the Court finds that Lombard did not make “a substantial showing of the denial of a 

constitutional right,” 28 U.S.C. § 2253(c)(2), and cannot satisfy the Slack criteria. Accordingly, 

the Court should deny Lombard a certificate of appealability. 

Dated: May 12, 2021 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

5

 On March 22, 2021, Lombard filed a letter asking the Court to require the government to disclose 

whether, pursuant to the limited attorney-client privilege waiver ordered by the Court, the 

government “made inquiry of [his] former counsel . . .” (ECF No. 105.) No such relief is 

warranted, as the facts discussed herein are all found in the record. 

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NOTICE TO THE PARTIES REGARDING OBJECTIONS 

Within 14 days after being served with a copy of this Report and Recommendation, any 

party may serve and file specific written objections to the proposed findings and recommendations 

and the order set forth above. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 

72.1(d)(1). Failure to timely file objections constitutes a waiver of any further right of appeal. See 

Thomas v. Arn, 474 U.S. 140, (1985); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). 

Only specific objections to this Report and Recommendation will be preserved for the Court’s 

appellate review; raising some objections but not others will not preserve all objections a party 

may have. See Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); 

see also Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). Copies of any objections 

must be served upon the Magistrate Judge. See E.D. Mich. LR 72.1(d)(2). 

A party may respond to another party’s objections within 14 days after being served with 

a copy. See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, 

and should address specifically, and in the same order raised, each issue presented in the 

objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on May 12, 2021. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager 

Case 2:15-cr-20008-SFC-DRG ECF No. 107, PageID.1202 Filed 05/12/21 Page 24 of 24