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Hoyd v. United States

United States District Court, D. Utah

April 24, 2018

JOSEPH HOYD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM DECISION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          TED STEWART UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         On April 13, 2016, Petitioner was charged with possession of methamphetamine with intent to distribute. On July 26, 2016, Petitioner pleaded guilty. On January 9, 2017, Petitioner was sentenced to 84 months in the custody of the Bureau of Prisons. Judgment was entered on January 12, 2017. Petitioner filed a direct appeal, which was dismissed at his request on May 23, 2017. Petitioner timely filed the instant Motion on January 8, 2018.

         II. DISCUSSION

         Petitioner's Motion raises claims of ineffective assistance of counsel. Petitioner argues that counsel was ineffective for failing to: (1) provide Petitioner with a copy of the Presentence Report prior to sentencing; (2) object to the two-level enhancement for possessing a firearm; (3) object to the computation of Petitioner's criminal history; and (4) safeguard Petitioner's best interests.

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[1] To establish prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[2]

         A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.[3] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[4] Finally, “[t]here is a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[5]

A. PRESENTENCE REPORT

         Petitioner first argues that his counsel was ineffective by failing to provide him with a copy of the Presentence Report prior to sentencing. Petitioner's claim is belied by the record. At sentencing, the Court asked counsel whether he had reviewed and discussed the Presentence Report with Petitioner. In response, counsel stated that he and Petitioner had “reviewed the report thoroughly.”[6] The Court then asked Petitioner whether he had a sufficient amount of time to discuss the Presentence Report with his counsel, to which Petitioner responded, “I think so, Your Honor.”[7]

         Based upon the evidence in the record, the Court cannot find that counsel's performance was deficient. Counsel represented to the Court that he had thoroughly reviewed the Presentence Report with Petitioner and Petitioner confirmed that he had sufficient time to discuss the Presentence Report with counsel. Even if Petitioner could demonstrate that counsel's performance was somehow deficient, he has failed to demonstrate prejudice. Petitioner has failed to show that the sentencing proceeding would have been different had counsel spent additional time discussing the Presentence Report with him. Therefore, the Court rejects Petitioner's argument.

         B. DANGEROUS WEAPON ENHANCEMENT

         Petitioner next argues that his counsel was ineffective by failing to object to the two-level enhancement for possession of a dangerous weapon. The Presentence Report included a two-level enhancement for possession of a dangerous weapon. United States Sentencing Guideline (“USSG”) Section 2D1.1(b)(1) calls for a two-level increase if a dangerous weapon was possessed. The government has the initial burden of proving possession by a preponderance of the evidence.[8] “The government may satisfy this burden by showing ‘that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.'”[9]“Generally, the government must provide evidence that the weapon was found in the same location where drugs or drug paraphernalia are stored or where part of the transaction occurred.”[10] “Once the government satisfies this initial burden, the defendant may overcome it only if he establishes ‘that it is clearly improbable the weapon was connected with the offense.'”[11]

         The undisputed facts of the Presentence Report showed that a firearm was located in the trunk of the vehicle, which also contained the methamphetamine for which Petitioner was convicted. The truck was accessible from the back seat of the vehicle. In addition, officers found a number of knives in the vehicle in the same general location as other drugs and drug paraphernalia. Based upon these facts, the government met its initial burden of proving the application of the enhancement. Petitioner asserts that he did not know anything about the firearm and that his co-defendant took full responsibility for it. Petitioner fails to provide any evidence to support his claim. Moreover, he has failed to show that it is clearly improbable that the weapon was connected with the offense. The fact that the co-defendant may have also possessed the firearm does not make it clearly improbable that the weapon was connected with the offense. “The enhancement applies when a co-defendant possessed a firearm, so long as possession was reasonably foreseeable to the defendant.”[12] Given the presence of drugs, drug paraphernalia, and various other weapons in the vehicle, the Court concludes that the possession of a firearm was reasonably foreseeable and Petitioner has not provided evidence otherwise. Additionally, ...


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