United States v. Dewitt, 3:98-cr-00081

Defendant Keith DeWitt, Sr. filed a Third Motion to Vacate under 28 U.S.C. § 2255 challenging his conviction/sentence.
Magistrate Judge Michael R. Merz issued a Report and Recommendations and a Supplemental Report recommending dismissal of the § 2255 motion; DeWitt filed objections and a late objection to the Supplement.
The Magistrate Judge denied leave to file the late objection; the District Court concluded that denial was proper and, even if considered, the late objection failed on the merits.
The Court relied on Sixth Circuit precedent holding that the Supreme Court decisions in Missouri v. Frye and Lafler v. Cooper do not apply retroactively on collateral review.
The District Court dismissed DeWitt’s § 2255 motion without prejudice to refiling if he obtains the required authorization from the Sixth Circuit under 28 U.S.C. § 2255(h)(2).
The Court denied a certificate of appealability and denied leave to appeal in forma pauperis, and ordered the case terminated on the district docket.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court should allow late objections to the Magistrate Judge’s Supplemental R&R	Late objections should be denied; procedure was proper	Late objections should be accepted and considered	Denied leave to file late objections; even if considered, objections overruled
Whether Frye and Lafler create a new rule retroactive on collateral review	Frye/Lafler are not retroactive and thus cannot support collateral relief	Frye/Lafler support his ineffective-assistance claim and should apply	Court affirmed that Frye/Lafler do not apply retroactively to collateral § 2255 review
Whether the § 2255 motion is successive and requires Sixth Circuit authorization under § 2255(h)(2)	Motion is successive and must be dismissed without prejudice pending circuit authorization	Motion can proceed in district court without prior circuit authorization	Dismissed without prejudice for lack of required Sixth Circuit permission
Whether a certificate of appealability and IFP appeal should be granted	No reasonable jurists would debate; appeal would be frivolous	Seeks certificate and IFP status to appeal	COA denied and leave to appeal IFP denied

Missouri v. Frye, 132 S. Ct. 1399 (2012) (addressed defense counsel’s duty to communicate plea offers and prejudice analysis under Strickland)
Lafler v. Cooper, 132 S. Ct. 1376 (2012) (addressed prejudice where ineffective counsel led to worse trial outcome than a plea offer)
Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (filing a notice of appeal generally divests the district court of jurisdiction over matters involved in the appeal)