USA v. Roberts et al

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
UNITED STATES OF AMERICA,
Plaintiff,
v.
STERLING H. ROBERTS,
Defendant.
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Case No. 3:18-cr-32-1
Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
______________________________________________________________________________
ENTRY AND ORDER ADOPTING THE REPORT AND
RECOMMENDATIONS (DOC. NO. 476); DENYING DEFENDANT’S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY (DOC. NO. 461)
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This § 2255 proceeding, brought pro se by Defendant Sterling Roberts under 28 U.S.C. §
2255, is before the Court on Defendant’s Objections (Doc. No. 477) to the Magistrate Judge’s
Report and Recommendations (the “Report”) (Doc. No. 476). Therein, Magistrate Judge Michael
R. Merz recommends the denial of Defendant’s Motion to Vacate (Doc. No. 461). (Doc. No. 476
at PageID 6035.) 	As required by 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Court has
reviewed the Report de novo with particular attention to those portions objected to by Defendant.
Having done so, the Court finds the objections are without merit.
The Report relied in part on the declaration under penalty of perjury of one of Defendant’s
trial attorneys, Donald J. Malarcik. Mr. Malarcik denied having been told of an incident in which
an FBI agent who was to testify in Defendant’s trial got on the same elevator as two jurors and
made comments to them. 	The Magistrate Judge’s Report found that it was not ineffective
assistance of trial counsel to fail to report this to the Court and request a Remmer hearing because
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doing so would risk a mistrial when the case had been pending for some time and had been in trial
for eight days. Defendant’s Objections do not suggest why this could not have been an acceptable
strategic choice by counsel.
The Court agrees with the Report and finds it was not deficient performance to fail to
request a Remmer hearing. 	Even the text message Defendant relies upon to suggest that his
attorneys were aware of this elevator incident does not necessarily evince defense counsel’s
ineffectiveness. Indeed, that text message can reasonably be read to depict an instance where the
FBI agent who was set to testify simply exchanged niceties with two jurors as he got on the
elevator. Further, the text message was supposedly sent to one of Defendant’s attorneys as part of
a long barrage of texts to counsel attempting to improperly dictate trial strategy. It would have
been perfectly reasonable for counsel to view the purported elevator instance as yet another
unwarranted demand. 	Thus, Defendant’s objection regarding the Remmer hearing issue is
overruled.
Defendant makes no objection to other issues dealt with in the Report, to wit, the asserted
failure of defense counsel to call a character witness about Defendant’s experience with firearms,
the testimony of attorney Lori Cicero, failure to call Tawney Caldwell as a witness, and the asserted
failure to “challenge” the misidentification. The Report’s conclusions on those issues are adopted.
Based on this analysis, it is hereby ORDERED that the Report and Recommendations
(Doc. No. 476) is adopted and Defendant’s Objections (Doc. No. 477) are OVERRULED.
Accordingly, the Court hereby DENIES Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct a Sentence by a Person in Federal Custody (Doc. No. 461). 	Because
reasonable jurists would not disagree with this conclusion, Petitioner is denied a certificate of
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appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively
frivolous and should not be permitted to proceed in forma pauperis.
DONE and ORDERED in Dayton, Ohio, this Monday, November 24, 2025.
s/Thomas M. Rose
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THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
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