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Lane v. United States

United States District Court, D. Arizona

April 2, 2018

Michael Rocky Lane, Petitioner,
v.
United States of America, Respondent.

          ORDER

          David G. Campbell, United States District Judge.

         Petitioner 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.

         I. Background.

         On 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.

         On 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.

         II. Standard of Review.

         The 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.

         III. Discussion.

         All of 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).

         “A 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 (2011)).

         A. Multiplicitous Claims.

         Ground 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.

         The 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).

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