IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Victor H. Duran-Gamboa,

Petitioner

v.

United States of America,

Respondent

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:

:

:

:

Civil Case No. 2:13-cv-1162

Criminal No. 2:12-cr-74-2

Judge Graham

Magistrate Judge Abel

Report and Recommendation

Petitioner Victor H. Duran-Gamboa, a prisoner at the Northeast Ohio Correctional Center, brings this action for writ of habeas corpus under 28 U.S.C. §2255. This

matter is before the Magistrate Judge for preliminary consideration under Rule 4, Rules

Governing Section 2255 Cases in United States District Courts.

The petition alleges that on March 22, 2013, petitioner Duran-Gamboa was

convicted in the United States District Court for the for the Southern District of Ohio by

his guilty plea of conspiracy to possess with intent to distribute and to distribute over

100 kilograms of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and

841(b)(1)(B)(vii). He was sentenced to a term of 60 months in prison.

Petitioner did not appeal the sentence. The petition here alleges the

following grounds for relief:

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One: Although petitioner was sentenced for possession with intent to distribute

1056.07 kilograms of marijuana, only 909 kilograms were confiscated.

Two: He should have been sentenced under the mandatory minimum 60 month

sentence because of the safety valve in section 2D.1.1 of the Sentencing

Guidelines.

Three: His role in the offense was limited to being a lookout and was qualified

for a lower sentence under 18 U.S.C. § 3553(F).

Four: He was the least culpable offender.

Claims that could have been raised on direct appeal but were not are waived.

Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Here petitioner did not take an

appeal; consequently, his claims regarding sentencing are waived unless he can

demonstrate cause and prejudice for failing to file an appeal. Id. The petition alleges

neither cause nor prejudice.

Accordingly, the Magistrate Judge RECOMMENDS that this action be

DISMISSED because the claims pleaded in the petition should have been raised on

direct appeal but were not. 

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, specifically designating this Report and Recommendation, and the part thereof

in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),

Fed. R. Civ. P.

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The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District

Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.

Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

s/Mark R. Abel 

United States Magistrate Judge 

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