United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY, JUDGE
REPORT AND RECOMMENDATION
Terence P. Kemp United States Magistrate Judge
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.
Factual and Procedural History
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.
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.
Grounds One and Two- Ineffective Assistance of
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.
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
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.
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.
first ground for relief, Petitioner asserts that his counsel
was ineffective during the pretrial and plea ...