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Archer v. United States

United States District Court, W.D. Arkansas, Texarkana Division

September 12, 2018




         Before the Court is the Report and Recommendation filed June 2, 2017, by the Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas. (ECF No. 47). Judge Bryant recommends that the Court deny Petitioner Christian Archer's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 34). Petitioner has filed objections. (ECF No. 48). The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On January 29, 2014, Petitioner was named in a five-count Indictment filed in the United States District Court for the Western District of Arkansas. Counts One through Three charged Petitioner with distribution of more than 5 grams of actual methamphetamine; Count Four charged him with possession with intent to distribute more than 5 grams of actual methamphetamine near a public housing authority; and Count Five charged him with the use and carrying of a firearm during a drug trafficking crime. On July 25, 2014, Petitioner appeared before the Court with his attorney, Louis Lloyd, and after a plea colloquy, [1] pleaded guilty to Count Five, pursuant to a written plea agreement. On April 23, 2015, the Court sentenced Petitioner to 188 months' imprisonment and 3 years' supervised release, imposed a $100 special assessment, and dismissed the remaining counts against him. On April 27, 2015, the Court filed a judgment adopting the sentence. Petitioner did not appeal his sentence.

         On April 28, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 34). Petitioner argues that his sentence should be vacated due to ineffective assistance of counsel because his attorney allowed him to plead guilty to Count Five of the Indictment despite the fact that his firearm was not loaded and there was no “active employment” of the firearm. Petitioner also argues that a recent development in the law-specifically, the Safe Justice Act- clarifies “how possession of a firearm would be fulfilled under [18 U.S.C. §] 924(c), ” thereby entitling him to section 2255 relief. On June 27, 2016, the government responded to the instant motion, contending that Petitioner's motion is meritless and should be denied. (ECF No. 38). On April 6, 2017, Petitioner filed a supplement to his section 2255 motion, asserting that he is entitled to section 2255 relief based on three cases.[2]

         On June 2, 2017, Judge Bryant issued the instant Report and Recommendation. Judge Bryant recommends that the Court deny Petitioner's motion. Judge Bryant separately addressed each of Petitioner's asserted grounds for relief and found that each was meritless.

         Judge Bryant found that Petitioner's claim of ineffective assistance of counsel fails because, even if Petitioner's assertion that his firearm was unloaded is true, he nonetheless could have been convicted under 18 U.S.C. § 924(c)(1)(A), which prohibits possession of a firearm “in furtherance” of certain crimes. Judge Bryant reasoned that the Eighth Circuit has found that a firearm need not be actively utilized to be used in furtherance of a crime, and that a defendant may be convicted if the firearm is merely kept near drugs and is quickly accessible. Judge Bryant noted that in this case, Petitioner's firearm was found with methamphetamine, which provides the necessary nexus between the possession of the firearm and the underlying drug crime. Based on this, Judge Bryant found that Petitioner failed to show that his attorney's representation fell below an objective standard of reasonable competence and that, even if he had, he failed to show prejudice because, based on the admitted facts contained in the plea agreement, he would have likely been convicted of all five counts in the Indictment if he had gone to trial.

         Judge Bryant also found that Petitioner's claim for relief based on the Safe Justice Act fails. Specifically, Judge Bryant noted that the Safe Justice Act is merely a bill and has not become law. Thus, Judge Bryant found that Petitioner is not entitled to relief under the Safe Justice Act.

         Judge Bryant found further that Petitioner is not entitled to relief based on the cases cited in his supplement. Judge Bryant addressed each of the cases and found that none were applicable to this case. Accordingly, Judge Bryant found that Petitioner's supplement does not entitle him to relief.

         Judge Bryant concluded the instant Report and Recommendation by recommending that the Court deny the present motion. Judge Bryant also recommended a finding that no evidentiary hearing is necessary in this case because Petitioner is clearly not entitled to the relief he seeks. Judge Bryant recommended further that the Court decline to issue a certificate of appealability because Petitioner has not made a substantial showing of the denial of a constitutional right.

         On June 20, 2017, Petitioner filed objections to the Report and Recommendation. Pursuant to 28 U.S.C. § 646(b)(1), the Court will conduct a de novo review of all issues related to Petitioner's specific objections.


         Petitioner specifically objects to two of Judge Bryant's findings. Petitioner argues that his ineffective assistance of counsel claim is valid and that one of the cases cited in his supplement, Miller v. Aderhold, 288 U.S. 206 (1933), entitles him to relief.[3] The Court will separately address each of these arguments.

         A. Ineffective ...

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