United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING DEFENDANT'S MOTION
TO VACATE UNDER 28 U.S.C. § 2255
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
the Court is Defendant Benjamin Boyd's motion to vacate
his conviction under 28 U.S.C. § 2255. Boyd pled guilty
to one count of Possession of a Firearm in Furtherance of a
Drug Trafficking Crime pursuant to 18 U.S.C. § 924(c) on
June 2, 2016. ECF No. 23. Defendant timely moved to vacate
his sentence on February 27, 2017. ECF No. 20. For the
reasons stated herein, the Court will DENY
Defendant's motion to vacate his conviction under 28
U.S.C. § 2255.
March 17, 2016, Michigan state police and the Drug
Enforcement Administration executed a search warrant at a
home in Flint, Michigan. Plea Agreement, ECF 16,
PageID.45-46. Police seized Defendant Boyd as he was walking
away from that residence. Id. Inside the home,
police recovered a Colt 9mm rifle under a loveseat in the
living room, a Sig Sauer AR 15 .223 caliber rifle under a
couch in the living room, and a .410 caliber shotgun in the
basement. Id. All of the weapons were loaded.
Id. In a bedroom located on the second floor of the
home, police also recovered 13 grams of heroin and $924.
Id. Both were found in a safe in the bedroom.
Id. Also found in the bedroom were items bearing
Boyd's name. Id. Defendant was thereafter
indicted on one count of Possession with Intent to Distribute
Heroin, pursuant to 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (“Count 1”), and one count of
Possession of a Firearm in Furtherance of a Drug Trafficking
Crime pursuant to 18 U.S.C. § 924(c)(1)(A) (“Count
2”). ECF No. 9. As part of the Indictment, the
Government alleged that Boyd “knowingly possessed a
firearm, that is: a Sig Sauer .223 semi-automatic rifle, in
furtherance of a drug trafficking crime, for which
he may be prosecuted in a court of the United States, that
is, possession with intent to distribute heroin.”
Id. at PageID.21 (emphasis added).
2, 2016, Defendant entered a plea of guilty as to Count 2
only. See Plea Agreement, ECF No. 16. In the Rule 11
plea agreement, Defendant admitted that on March 17, 2016 he
knowingly possessed 13 grams of heroin stored in a safe in a
second-floor bedroom of a home in Flint, Michigan.
Id. at PageID.45. He also admitted to intending to
distribute this heroin to others in exchange for money.
Id. Further, Plaintiff admitted that he possessed a
firearm, a Sig Sauer AR 15 .223 caliber rifle, which he
stored underneath a couch in the living room of the home.
Id. He admitted to loading the firearm “with a
large capacity magazine, so that it could be easily accessed
and available if needed, ” and that he “used
this firearm to protect his supply of heroin.”
Id. Boyd also admitted as much verbally at the June
2, 2016 plea hearing. For example, Boyd admitted that he
possessed the firearm “[t]o protect the drugs and
[himself].” Plea Hearing Transcript, ECF No. 23,
PageID.117. He further admitted that “the fact that
[he] had this firearm, was . . . related to possessing heroin
in order to distribute the heroin.” Id.
Defendant's §2255 motion to vacate, Boyd alleges he
is entitled to relief due to ineffective assistance of
counsel. See ECF No. 20.
Standard of Review
United States Supreme Court uses the two-prong
Strickland test to analyze ineffective assistance of
counsel claims. Strickland v. Washington, 466 U.S.
668, 688 (1984). To meet this test, Boyd must show (1) that
“counsel's representation fell below an objective
standard of reasonableness, ” and (2) that
“counsel's performance [was] prejudicial to the
defense.” Id. When critiquing counsel's
performance, courts are required to be “highly
deferential” and “must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. . . .”
Id. at 689. In the Sixth Circuit, courts also
“must take care to avoid ‘second-guessing'
strategic decisions that failed to bear fruit.”
Lundgren v. Mitchell, 440 F.3d 754, 769-70 (6th Cir.
2006) (quoting Strickland, 466 U.S. at 689).
brings two claims of ineffective assistance of counsel.
First, he alleges that his counsel was ineffective in failing
to move to dismiss Defendant's indictment because his
conduct did not fall within the “use or carry”
element of 18 U.S.C. § 924(c) “in direct violation
of” Bailey v. United States, 516 U.S. 137
(1995). ECF No. 20, PageID.94. Second, Defendant alleges
counsel was ineffective in failing to provide him accurate
legal advice, thereby rendering his plea neither voluntary
nor intelligent. The Court will consider Boyd's
ineffective assistance claims together, as they both involve
his allegations that trial counsel misled him as to the
elements of § 924(c).
Boyd asserts that his counsel was ineffective for misleading
him as to the elements of § 924(c), a review of the
statute and the caselaw reveals that Boyd is incorrect.
U.S.C. § 924(c)(1)(A) in relevant party provides that:
any person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses
or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm,
shall . . . be sentenced to a term of imprisonment of not
less than 5 years.
(Emphasis added). The statute “criminalizes two
separate and distinct offenses.” United States v.
Combs, 369 F.3d 925, 933 (6th Cir. 2004). A defendant
can either (1) use or carry a firearm during and
in relation to a drug trafficking crime or (2)
possess a firearm i ...