United States District Court, W.D. Arkansas, Texarkana Division
F. BARNES UNITED STATES DISTRICT JUDGE
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
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,  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.
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, 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.
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.
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.
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.
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.
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.
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. The Court will separately address each
of these arguments.