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Bedolla-Zarco v. United States

United States District Court, S.D. Ohio, Eastern Division

May 22, 2017

MIGUEL BEDOLLA-ZARCO, Petitioner/Defendant,
v.
UNITED STATES OF AMERICA, Respondent/Plaintiff.

          ALGENON L. MARBLEY, JUDGE

          REPORT AND RECOMMENDATION

          Terence P. Kemp United States Magistrate Judge

         Petitioner, Miguel Bedolla-Zarco, acting pro se, has filed a motion to vacate or set aside his sentence pursuant to 28 U.S.C. §2255. This case is before the Court on the motion (Doc. 846), the United States' response (Doc. 858), and Petitioner's reply (Doc. 882). For the foregoing reasons, it will be recommended that the motion to vacate be DENIED.

         I. Factual and Procedural History

         On September 18, 2014, a Grand Jury returned a six-count indictment charging Petitioner and 28 other individuals with drug-related offenses. That was followed by a 15-count superseding indictment returned on April 2, 2015. Count 2 of that indictment charged Petitioner with conspiracy to distribute and to possess with intent to distribute methamphetamine between January 1, 2011 and September 23, 2014, in violation of 21 U.S.C. §§846, 841(a)(1) and (b)(1)(C). (Doc. 398). On November 19, 2015, Petitioner entered a guilty plea to that charge. (Doc. 653). Following a sentencing hearing, Petitioner was sentenced to 58 months' incarceration and three years of supervised release. (Doc. 795, 798). Petitioner did not appeal.

         On June 21, 2016, Petitioner filed this motion to vacate pursuant to 28 U.S.C. §2255. He raises three grounds for relief, two of which assert ineffective assistance of counsel, and one of which claims that he was sentenced in violation of Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015). Each claim will be set forth in detail in the following sections of this Report and Recommendation. Respondent argues that none of these claims has merit.

         II. Discussion

         A. Grounds One and Two- Ineffective Assistance of Counsel

         Petitioner raises two separate ineffective assistance of counsel grounds for relief, asserting that counsel was constitutionally ineffective at both the pretrial/plea negotiation and sentencing phases of the proceedings.

         The right to counsel guaranteed by the Sixth Amendment is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The standard for reviewing a claim of ineffective assistance of counsel is twofold:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689.

         To establish prejudice, it must be shown that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 697. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, if the Court determines that petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.

         In his first ground for relief, Petitioner asserts that his counsel was ineffective during the pretrial and plea ...


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