United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§2255 (ECF #1861). The Government filed a Response in
Opposition to Petitioner's Motion (ECF#1868). Petitioner
filed a Reply to Government's Response (ECF#1873). For
the following reasons, the Court denies Petitioner's
was indicted on September 11, 2013, with fifty-nine
co-defendants in a Superseding Indictment. Petitioner was
charged with Conspiracy to Distribute Heroin and Use of a
Telephone to Facilitate Drug Trafficking. The case proceeded
to trial. Petitioner was convicted of the Heroin Trafficking
Conspiracy and eight counts of Using a Telephone to
Facilitate Drug Trafficking. The jury returned a Special
Verdict finding that the conspiracy involved one kilogram or
more of heroin. Based on that heroin quantity and
Petitioner's two previous convictions, he was subject to
a mandatory minimum term of life in prison. On September 14,
2015, Petitioner was sentenced to a life sentence on Count
One and 48 months' imprisonment on each of the remaining
filed a timely Notice of Appeal. The Sixth Circuit Court of
Appeals affirmed the conviction and sentence on October 31,
2016. Petitioner filed a Petition for Rehearing en banc on
November 18, 2016, which was denied on January 27, 2017. On
November 3, 2017, Petitioner filed the instant Motion to
Vacate under 28 U.S.C. § 2255 asserting five claims.
Claims One, Two, Four and Five assert ineffective assistance
of counsel and Claim Three asserts prosecutorial misconduct.
2255 of Title 28, United States Code, provides:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
order to prevail upon a §2255 motion, the movant must
allege as a basis for relief: ‘(1) an error of
constitutional magnitude; (2) a sentence imposed outside the
statutory limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding invalid.
'” Mallett v. United States, 334 F.3d
496-497 (6th Cir. 2003), quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir.2001).
out an ineffective assistance of counsel claim, the
petitioner must demonstrate both inadequate performance by
counsel and prejudice resulting from that inadequate
performance. Strickland v. Washington, 466 U.S. 668,
687 (1984). “The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied upon as having produced a
just result.” Id. at 686. Indeed, under the
test set forth in Strickland, the defendant must
establish deficient performance and prejudice:
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.
Unless a defendant makes both showings, it cannot be said
that the conviction ... resulted from a breakdown in the
adversary process that renders the result unreliable.
Id. at 687.
Claim One, Petitioner argues that counsel did not object to
or challenge the amount of narcotics and thus provided
ineffective assistance. On direct appeal the Sixth Circuit
found that there was sufficient evidence to support
Petitioner's conviction for conspiring to distribute in
excess of one kilogram of heroin. Where a claim has been
raised and decided on direct review, it cannot be relitigated
under Section 2255 unless there has been an intervening
change in the governing substantive law. Withrow v.
Williams, 507 U.S. 680, 721-21 (1993); Oliver v.
United States, 90 F.3d 177 (6th Cir. 1996). The Court
agrees with Respondent that since this claim has already been