United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING IN PART PETITIONER'S
MOTION TO VACATE SENTENCE [#128] AND ORDERING AN EVIDENTIARY
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE.
before the Court is Petitioner Miguel Angel Vergara's
Motion to Vacate Sentence. Dkt. No. 128. Petitioner argues
ineffective assistance of counsel because his lawyer
allegedly did not properly investigate facts of his case at
trial. Id. at pg. 4 (pg. ID 545). Petitioner also
argues ineffective assistance of counsel because his lawyer
allegedly did not file a timely notice of appeal after
Petitioner told his lawyer he wanted to appeal. Id.
at pg. 5 (pg. ID 546). For the reasons that follow, this
Court will deny Petitioner's Motion to Vacate on grounds
that Petitioner's attorney did not properly investigate.
However, this Court will hold a hearing on Petitioner's
Motion to Vacate for allegedly not filing a timely notice of
15, 2016, Petitioner pleaded guilty to conspiracy to
distribute a controlled substance. Dkt. No. 124, pg. 1 (Pg.
ID 481). That same day, this Court sentenced Petitioner to
108 months in prison. Dkt. No. 128, pg. 1 (Pg. ID 542).
Petitioner did not appeal from the judgment of conviction.
Id. On June 13, 2017, Petitioner filed the present
Motion to Vacate Sentence. Dkt. No. 128. The government
responded to the Motion on September 28, 2017. Dkt. No. 136.
Petitioner did not file a timely reply.
will grant relief under 28 U.S.C. § 2255 if there was:
“(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.” U.S. v. Doyle, 631
F.3d 815, 817 (6th Cir. 2011). “Ineffective assistance
of counsel claims fall within the first of these three
Assistance of Counsel
argues that he received ineffective assistance of counsel
because his lawyer did not properly investigate evidence
against him. Dkt. No. 128, pg. 4 (Pg. ID 545). Petitioner
also argues that his lawyer did not appeal his case, even
though Petitioner told his lawyer that he wanted to appeal.
Id. at 5 (Pg. ID 546).
succeed on an ineffective assistance of counsel claim, a
movant must show that “his counsel's performance
fell below an objective standard of reasonableness”;
and that the performance prejudiced the movant's case.
U.S. v. Doyle, 631 F.3d at 817.
Petitioner claims that his lawyer failed to investigate
evidence against him properly. Dkt. No. 128, pg. 4 (Pg. ID
545). To succeed, Petitioner must demonstrate that his
lawyer's alleged failure to investigate fell below an
objective standard of reasonableness. Petitioner must also
demonstrate that the alleged failure to investigate
prejudiced his case.
a lawyer's performance fell below an objective standard
of reasonableness is a high burden. There is a strong
presumption that an attorney's conduct was reasonable.
McMullan v. Booker, 761 F.3d 662, 672 (6th Cir.
2014). In other words, there is a wide range of reasonable