USA v. Marshall

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
BENJAMIN DALE MARSHALL,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CASE NO.: 5:25-cv-01529
5:22-cr-00563
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION AND
ORDER
(Resolves Docs. 74, 75)
This matter is before the Court upon Benjamin Dale Marshall’s (“Marshall”) Motion to
Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255 (Doc. 74). The United
States of America (the “Government”) filed the Government’s Response in Opposition to
Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence. Doc. 75. The matter is now fully
briefed and ready for disposition. For the reasons set forth herein, the Motion is DENIED.
I. 	PROCEDURAL BACKGROUND
A federal grand jury returned an indictment charging Marshall with distribution of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). Doc. 1. Marshall pled
guilty pursuant to a plea agreement. Doc. 44. On February 27, 2024, the Court sentenced Marshall
to 84 months’ imprisonment, consecutive to a sentence imposed by Judge Nugent in a separate
federal case. Doc. 62. Marshall filed the Notice of Appeal (Doc. 64), and the Sixth Circuit
dismissed the appeal. See United States v. Marshall, No. 24-3192, 2025 U.S. App. LEXIS 2513
(6th Cir. Feb. 4, 2025). He then filed the instant Motion, wherein he argues that he was denied
effective assistance of counsel.
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II. 	LEGAL STANDARD
A prisoner in custody that moves to vacate, set aside, or correct a sentence pursuant to 28
U.S.C. § 2255 must show that (i) the sentence was imposed in violation of the Constitution or laws
of the United States, (ii) the court was without jurisdiction to impose such sentence, (iii) the
sentence was in excess of the maximum authorized by law, or (iv) the sentence is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). Marshall’s claim of ineffective assistance of counsel falls
in the first category because he alleges that his constitutional right to the effective assistance of
counsel was violated. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
A motion made pursuant to 28 U.S.C. § 2255 is the appropriate vehicle for raising a claim
of ineffective assistance of counsel. United States v. Daniel, 956 F.2d 540, 543 (6th Cir. 1992)
(“Ineffective assistance of counsel claims are best brought by a defendant in a post-conviction
proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the
issue.”) The test of counsel’s effectiveness was set forth by the Supreme Court in Strickland v.
Washington. The measure used is whether the representation fell below an objective standard of
reasonableness. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To succeed on their claim
of ineffective assistance of counsel, the defendant must show both a deficient performance and
resulting prejudice. Id. at 688. Counsel’s performance is evaluated considering all circumstances,
based on their perspective at the time. Snider v. United States, 908 F.3d 183, 192 (6th Cir. 2018)
(citing Strickland, 466 U.S. at 689). Further, counsel’s strategic choices are granted a high level of
deference under the presumption that the challenged action might be considered sound trial
strategy. Tremble v. Burt, 497 Fed. Appx. 536, 574 (6th Cir. 2012) (citation and internal quotation
marks omitted). The second part of the Strickland test – whether there was resulting prejudice – is
more difficult. To succeed on this prong, a defendant must prove that there is “a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Bullard v. United States, 937 F.3d 654, 661 (6th Cir. 2019) (citation omitted).
III. 	ANALYSIS
Marshall argues that trial counsel was ineffective when they did not argue that his separate
federal case constituted relevant conduct, therefore leading to a longer sentence because the
sentence in this case was not grouped with his separate sentence. Doc. 4 at p. 17.
Relevant conduct, or activity that was ‘part of the same course of conduct or common
scheme as the offense’ may be considered when calculating the sentencing guidelines range.
United States v. Bowens, 938 F.3d 790, 798 (6th Cir. 2019) (internal citation and quotation marks
omitted). The inquiry into whether conduct is part of the same course or a common scheme
revolves around whether there is regularity, similarity, and timing. Id. at 799. Marshall argues that
his federal conviction for felon in possession of a firearm, with an offense date of January 17, 2021
(see Case No. 5:21-cr-00147 (N.D. Ohio)) constitutes relevant conduct in relation to his underlying
conviction for the distribution of methamphetamine on or about July 23, 2020. Doc. 74 at p. 17.
These two crimes do not constitute relevant conduct or conduct that was part of a common
scheme. First, “two instances of unlawful conduct is not ‘regular’ conduct.” Bowens at 799. The
convictions, one for illegal possession of a firearm and the other for the illegal distribution of
drugs, are only “regular” and “similar” in that they are both federal crimes. And last, the timing of
the instances – about six months apart – does not suggest the two acts were part of the same course
of conduct. Therefore, any relevant conduct argument by trial counsel in support of a different
sentence would have been futile, and counsel was not ineffective for withholding a baseless
objection. See Strickland, 466 U.S. at 688. Further, to the extent Marshall argues his sentences
should have been concurrent, the authority to order a sentence concurrent with or consecutive to
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any other sentence rests with the federal sentencing court. Setser v. United States, 566 U.S. 231,
237 (2012). At sentencing, the Court considered Marshall’s state and federal convictions and
sentences and determined that a consecutive sentence was appropriate given the separate criminal
conduct underlying each case. See Transcript of Sentencing Hearing, Doc. 70 at pp. 23–24.
Accordingly, this ground for relief is denied.
IV. 	CONCLUSION
For the foregoing reasons, Marshall’s Motion to Vacate, Set Aside, or Correct a Sentence
(Doc. 74) is DENIED.1 Pursuant to 28 U.S.C § 1915(a)(3), the Court certifies that Marshall may
not take an appeal from the Court’s decision in good faith, and that there is no basis upon which
to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
November 18, 2025 	/s/ John R. Adams
DATE 	JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
1 	In the Motion, Marshall includes a request for appointed counsel and a hearing on this matter. The Court may
appoint counsel for a financially eligible individual in a § 2255 proceeding when the interests of justice
require it. 18 U.S.C. § 3006A(a)(2)(B). The Court finds the issues herein are neither complex nor meritorious,
therefore there is no basis for the appointment of counsel. Further, in a § 2255 proceeding, “no evidentiary
hearing is necessary when a movant’s claims cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.” Norwood v. United States, No.
23-1684, 2025 U.S. App. LEXIS 2683, at *5 (6th Cir. Feb. 5, 2025) (quoting Arrendondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999). As Marshall’s claim lacks merit, an evidentiary hearing is not necessary.
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