United States District Court, S.D. Ohio, Western Division
M. Rose District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
an action on a Motion to Vacate under 28 U.S.C. § 2255
brought pro se by Defendant Darion Stargell to
obtain relief from his drug trafficking related convictions
in this Court. The Motion is before the Court for initial
review pursuant to Rule 4(b) of the Rules Governing §
2255 Proceedings which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States to file
an answer, motion, or other response within a fixed time, or
take other action the judge may order.
District Judges at the Dayton location of court have referred
all post-judgment collateral attacks on convictions to the
undersigned pursuant to General Order DAY 13-01. The case
remains assigned for disposition to District Judge Thomas M.
asserts he received ineffective assistance of counsel in
three ways. First, he asserts his trial attorney was
ineffective for not challenging the 28 U.S.C.§ 846
conviction (Motion, ECF No. 185, PageID 638-39). Second, he
asserts his trial attorney did not make the government prove
the mens rea required for 21 U.S.C. §
841(b)(1). Id. at PageID 640-44. Finally, he asserts
his appellate attorney was ineffective for abandoning him.
Id. at PageID 644-46.
was indicted with two others on April 13, 2017, and charged
in Count One with conspiring to distribute fentanyl in the
amount of 400 grams or more, and an unspecified amount of
tramadol, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A), (C), and (E). In Count Two he was charged with
distributing 100 grams or more of fentanyl and an unspecified
amount of tramadol in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A) and (E)(ECF No. 29). A Second
Superseding Indictment was filed May 25, 2017 (ECF No. 51).
September 11, 2017, Stargell agreed to plead guilty to one
count of conspiring to distribute heroin and fentanyl in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(C).
(ECF No. 98.) He agreed that he was guilty of the offense. In
particular he agreed to the following statement of facts:
Between late 2016 and early 2017, in the Dayton, Ohio area,
defendant Darion Stargell worked with other people, including
Sergio Candelas-Ruiz and Lizabeth Ruiz, to receive and to
distribute bulk quantities of heroin and fentanyl. Throughout
this time, the Ruizes arranged for couriers sent from Mexico
to bring large quantities of controlled substances to Mr.
Stargell in the Dayton metropolitan area. Upon obtaining
these illegal drugs, Mr. Stargell resold them to other drug
dealers in southern Ohio.
Id. at PageID 264. On September 13, 2017, Stargell
appeared before Judge Rose, acknowledged that he had signed
the plea agreement (including the statement of facts)
knowingly, intelligently, and voluntarily, and then pleaded
guilty as required by the plea agreement (Minute Entry, ECF
No. 99; Transcript, ECF No. 151). Judgment was entered on the
plea on March 9, 2018 (ECF No. 143). Although he had
voluntarily waived appeal (with exceptions not relevant
here), he filed a Notice of Appeal through counsel (ECF No.
176). The Sixth Circuit appointed new counsel on June 21,
2019 (ECF No. 179), but that counsel filed a motion to
dismiss the appeal at Stargell's direction on October 15,
2019. This § 2255 Motion to Vacate was timely filed
thereafter on December 9, 2019.
for Proving Ineffective Assistance of Counsel
three of Stargell's claim are based on his Sixth
Amendment right to the effective assistance of counsel. The
governing standard for ineffective assistance of trial
counsel was adopted by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's
assistance was so defective as to require reversal of a
conviction or death sentence has two components. First, the
defendant must show that counsel's performance was
deficient. This requires showing 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 or death
sentence resulted from a breakdown in the adversary process
that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective
assistance, a defendant must show both deficient performance
and prejudice. Berghuis v. Thompkins,560 U.S. 370,
389 (2010), quoting Knowl ...