United States District Court, D. Arizona
G. Campbell, United States District Judge.
Michael Rocky Lane filed a Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 based on
ineffective assistance of counsel. Doc. 1. Magistrate Judge
Charles R. Pyle has issued a Report and Recommendation
(“R&R”) suggesting that the Court deny the
motion. Doc. 23. Petitioner filed objections to the R&R,
the government responded, and Petitioner filed a reply. Docs.
24, 25, 31. For the reasons stated below, the Court will deny
the objections and adopt Judge Pyle's recommendation.
March 23, 2013, Petitioner was charged on three counts in a
second superseding indictment (the “Indictment”),
along with multiple codefendants. Doc. 23 at 2. On July 19,
2013, Petitioner was found guilty by a jury on all three
counts: Count One, conspiracy to manufacture or distribute
controlled substance analogues MDPV, a-PVP, a-PBP,
Pentedrone, and Pentylone in violation of 21 U.S.C.
§§ 846 and 841(a)(1), (b)(1)(c); Count Three,
conspiracy to manufacture controlled substance analogues
MPPP, a-PVP, a-PBP, Pentedrone, and Pentylone in violation of
21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(c); and
Count Five, possession or aiding and abetting in the
possession with intent to distribute controlled substance
analogues a-PVP, Pentedrone, and MPPP, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(c), and 18 U.S.C. § 2.
Id.; No. 2:12-cr-01419-PHX-DGC, Doc. 676 at 3-5.
Petitioner was sentenced to 180 months in prison on each
count, to be served concurrently. Doc. 23 at 3.
December 2, 2016, Petitioner, through counsel, filed a Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255, alleging five grounds for relief. Doc. 1. Each
ground claims ineffective assistance based on counsel's
failure to argue that: (1) Counts One and Three are
multiplicitous; (2) McFadden v. United States, 135
S.Ct. 2298 (2015), changed the knowledge requirement for
analogues and was not properly applied to this case; (3) the
pharmacological effects and potency of pyrovalerone are more
closely related to the analogues in this case and should have
been used for sentencing purposes; (4) the standard of proof
at sentencing should have been clear and convincing evidence;
and (5) the Analogue Act is unconstitutionally vague pursuant
to Johnson v. United States, 135 S.Ct. 2551 (2015).
Id. at 5-9; Doc. 7. Judge Pyle rejected each of
these grounds on the merits. Doc. 23 at 7-30. Petitioner
objects to Judge Pyle's recommendations and reargues the
merits of each claim. Doc. 24 at 1-15.
Standard of Review.
Court must undertake a de novo review of those portions of
the R&R to which specific objections are made.
See Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003). The portions of the R&R to which
Petitioner does not specifically object will be adopted
without further discussion. Id. The Court will not
review generalized objections, nor undertake a global
reevaluation of the merits of Petitioner's grounds for
relief. See Warling v. Ryan, No. CV
12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 19,
2013); Reyna-Tapia, 328 F.3d at 1121.
Petitioner's § 2255 claims assert that his trial
counsel, appellate counsel, or both rendered ineffective
assistance. The Supreme Court set out the relevant test in
Strickland v. Washington, 466 U.S. 668 (1984).
“To establish ineffective assistance of counsel under
Strickland, a prisoner must demonstrate
both: (1) that counsel's performance was
deficient, and (2) that the deficient performance
prejudiced his defense.” Miles v. Ryan, 713
F.3d 477, 486 (9th Cir. 2013) (emphasis in original) (citing
Strickland, 466 U.S. at 688-93). Courts must
“indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance, ” and attorneys are afforded
“wide latitude . . . in making tactical
decisions.” Strickland, 466 U.S. at 689. The
reasonableness of counsel's performance is judged under
an objective standard. United States v. Davis, 36
F.3d 1424, 1433 (9th Cir. 1994).
defendant is prejudiced by counsel's deficient
performance if ‘there is a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different.'”
Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A
‘reasonable probability is a probability sufficient to
undermine confidence in the outcome' of a
proceeding.” Id. Petitioner “need not
prove ‘counsel's actions more likely than not
altered the outcome, ' but rather he must demonstrate
that ‘[t]he likelihood of a different result [is]
substantial, not just conceivable.'” Id.
(quoting Harrington v. Richter, 562 U.S. 86, 111-12
One asserts that Petitioner's trial and appellate counsel
were ineffective for failing to argue that Counts One and
Three arise under a single conspiracy and are therefore
multiplicitous. Doc. 23 at 7. Judge Pyle found that the
Counts are not multiplicitous. Id. at 8. Petitioner
argues that a correct analysis shows there was only one
conspiracy. Doc. 24 at 1-5.
Fifth Amendment's Double Jeopardy Clause provides that no
person shall “be subject for the same offense to be
twice put in jeopardy of life or limb[.]” U.S. Const.
amend. V. It prohibits “the government from dividing a
single conspiracy into separate charges and pursuing
successive prosecutions against a defendant.”
United States v. Stoddard, 111 F.3d 1450, 1454 (9th
Cir. 1997). “[T]o determine whether two conspiracy
counts charge the same offense and so place the defendant in
double jeopardy, ” the Ninth Circuit considers five
factors: (1) the differences in time periods covered by the
conspiracies; (2) the location where the conspiracies
occurred; (3) the individuals charged as coconspirators; (4)
the overt acts committed; and (5) the violated statutes.
Id. “No single factor in the . . . analysis
controls the determination of whether there was a single
conspiracy; after consideration of all, the question is
whether there was more than one agreement.” United
States v. Guzman, 852 F.2d 1117, 1121 (9th Cir. 1988).