IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

UNITED STATES OF AMERICA,

Plaintiff, : Case No. 1:07-cr-137

(1:12-cv-060)

 District Judge Gregory L. Frost

-vs- Magistrate Judge Michael R. Merz

:

LAKEISHA BURNEY,

Defendant.

REPORT AND RECOMMENDATIONS

This case is before the Court for initial screening of Defendant’s Motion to Vacate under 28

U.S.C. § 2255 (Doc. No. 63). Rule 4 of the Rules Governing § 2255 Motions provides in pertinent

part:

(b) The judge who receives the motion must promptly examine it. If

it plainly appears from the motion, any attached exhibits, and the

record of prior proceedings that the moving party is not entitled to

relief, the judge must dismiss the motion and direct the clerk to notify

the moving party.

The case has been transferred from the judge who initially heard the case to District Judge Gregory

L. Frost. Pursuant to the General Order of Assignment and Reference for the Dayton location of

court, it has been referred to the undersigned Magistrate Judge for pretrial management, including

initial screening under Rule 4(b).

The prior record in the case shows that Defendant Lakeisha Burney entered into a Plea

Agreement with the United States on December 6, 2007 (Doc. No. 24). Therein she agreed to plead

guilty to two counts of bank robbery, each carrying a maximum sentence of twenty years in prison.

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She was then sentenced to 125 months on each count, to run concurrently with each other (Doc. Nos.

34, 35). She appealed to the Sixth Circuit and her appellate counsel filed an Anders brief1 and was

permitted to withdraw (Order, Doc. No. 52, PageID 299). The claims Defendant made in her pro

se brief all related to calculation of the sentencing guideline range. Id. The Court of Appeals found

the guilty plea was valid and there were no procedural or substantive error in the sentence. Id. at

PageID 300-301. Final judgment was entered October 23, 2009 (Doc. No. 52). Defendant is

deemed to have filed the instant Motion on January 18, 2012, the date she signed the Motion (Doc.

No. 63). Houston v. Lack, 487 U.S. 266 (1988). 

Defendant pleads the following Grounds for Relief:

Ground One: Leadership points were inaccurately assigned to me at

the trial.

Supporting Facts: Vernell Burney, a co-defendant was the leader in

this case. He was not assigned the leadership points. Vernell Burney

served his time, and upon release from this case, planned and

committed another Bank Robbery, which he is currently incarcerated

for at the present time.

Ground Two: Eric Malcom is my brother. His case was tried in

Dayton, Ohio, at the courthouse where my mother workd [sic]. The

court would not allow my case to be tried at the Dayton courthouse,

due to my mother’s employment, yet my brother was tried there.

Supporting Facts: My brother, Eric Malcom, was not tried until

after my trial. He was tried in Dayton, but my case was unfairly

moved to Cincinnati. I was thus discriminated against.

(Motion, Doc. No. 63, PageID 321-322.)

28 U.S.C. § 2255(f) provides a one-year statute of limitations for § 2255 motions which runs

from the last of four dates; the two potentially relevant dates here are (1) the date on which the

judgment of conviction became final (28 U.S.C. § 2255(f)(1)) and (2) “the date on which the facts

supporting the claim or claims presented could have been discovered through the exercise of due

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Anders v. California, 386 U.S. 738 (1967).

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diligence.”

The Court of Appeals judgment in this case was entered October 23, 2009. The judgment

of conviction became final ninety days later on January 21, 2010, when Defendant’s time to petition

the Supreme Court for a writ of certiorari expired. Clay v. United States, 537 U.S. 522 (2003). Thus

the time for filing under 28 U.S.C. § 2255(f)(1) expired January 21, 2011. Under that section, the

Motion is untimely because it was not filed until January 18, 2o12, nearly a year later.

Recognizing the problem presented by § 2255(f)(1), Ms. Burney claims instead that the facts

on which her Motion depends were only discovered after the appeal:

These events did not take place until after 1 year of my final

judgement being entered by the Appellate Court. My former

co-defendant Vernell Burney was just recently convicted of another,

similar crime. This motion is timely filed within a one year timeframe

from the discovery of that conviction.

(Motion, Doc. No. 63, PageID 325.)

The records of this Court reflect that Vernell Burney was indeed convicted of armed bank

robbery and sentenced to sixty months confinement by District Judge Rice on September 30, 2011

(Case No. 3:11-cr-051, Doc. No. 32). The records also reflect that in this case Vernell Burney was

sentenced to thirty-seven months imprisonment and three years supervised release on April 23, 2008.

Upon his arrest for the new charges, Judge Rice on October 4, 2011, revoked his supervised release

and sentenced him to eighteen months imprisonment in this case, consecutive to the sixty months

in the new case (Doc. No. 62). 

It is certainly true that Defendant could not have learned of Vernell Burney’s new conviction

until after it happened in October 2011, less than a year before she filed her Motion. But whatever

Vernell Burney did after his release from prison in this case cannot possibly affect whether she was

properly assessed leadership points for her conviction. That determination had to be final at the time

her sentence was imposed. To put it another way, the only facts which Judge Beckwith could have

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considered in assessing the leadership points were facts that had already happened. The fact that

her co-defendant was later convicted of another armed bank robbery does not show that she was not

a leader for purposes of these two bank robberies. Therefore the discovery of his conviction does

not start the statute of limitations over again. Defendant’s first Ground for Relief is time barred.

With respect to Eric Malcolm, the records of this Court show that he was indicted on May

12, 2009, on numerous drug and firearm charges (Case No. 3:09-cr-065, Doc. No. 17). On August

28, 2009, he pled guilty and was thereafter on August 19, 2010,sentenced by Judge Rice to seventyfive months imprisonment (Doc. Nos. 56, 125). Defendant does not say when she learned of her

brother’s conviction, but with any diligence she should have learned of it before January, 2011. 

Furthermore, her brother’s prosecution in Dayton, Ohio, in 2009 does not support a claim

that she was treated unfairly or discriminated against when her case was transferred to a Cincinnati

judge in 2007. The Court realized in 2007 that her mother not only worked in the courthouse but

was in fact a deputy clerk of courts and transferred the case so as to avoid any appearance that one

of the judges might be biased. That decision was made without any knowledge that her brother

would be indicted two years later.

Finally, this is the first time Defendant has complained of the transfer to a Cincinnati judge. 

She never made any complaint while her case was pending, she does not now suggest Judge

Beckwith was prejudiced against her, and she raised no such claim on appeal. Litigants, either civil

or criminal, have no right to choose the judge to whom their case is assigned, unless for some reason

that particular judge is disqualified from hearing the case. Defendant’s second Ground for Relief is

therefore also time-barred.

Even if Defendant’s claims were not barred by the statue of limitations, they would be barred

by her failure to raise them on direct appeal. Defendant had already had her case transferred to a

Cincinnati District Judge and been assessed the leadership points at the time she appealed. If she

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had any valid claims arising out of the transfer or the assessment, she could have raised those at the

time of the appeal. As noted above, facts that occurred after the transfer (brother indicted in Dayton)

or the assessment (co-defendant convicted in a new case) cannot possibly have affected those

decisions and therefore any claim she has about those two decisions could have been raised on direct

appeal. Claims which can be presented on direct appeal but are not thus presented are forfeited and

cannot be considered on a § 2255 Motion. United States v. Frady, 456 U.S. 152 (1982). 

It is therefore respectfully recommended that the § 2255 Motion be dismissed with prejudice. 

Because reasonable jurists would not disagree with this conclusion, Defendant should be denied any

requested certificate of appealability and the Court should certify to the Sixth Circuit that any appeal

would not be taken in objective good faith.

January 30, 2012.

s/ Michael R. Merz

 United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within fourteen days after being served with this

Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.

5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and

shall be accompanied by a memorandum of law in support of the objections. If the Report and

Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,

the objecting party shall promptly arrange for the transcription of the record, or such portions of it

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District

Judge otherwise directs. A party may respond to another party’s objections within fourteen days

after being served with a copy thereof. Failure to make objections in accordance with this procedure

may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v.

Arn, 474 U.S. 140 (1985).

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