Dix v. United States

955 F. Supp. 787, 1997 U.S. Dist. LEXIS 2545, 1997 WL 101848
CourtDistrict Court, W.D. Michigan
DecidedFebruary 14, 1997
DocketNo. 1:96-CV-658
StatusPublished

This text of 955 F. Supp. 787 (Dix v. United States) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dix v. United States, 955 F. Supp. 787, 1997 U.S. Dist. LEXIS 2545, 1997 WL 101848 (W.D. Mich. 1997).

Opinion

OPINION REGARDING PETITION FOR WRIT OF HABEAS CORPUS

QUIST, District Judge.

This is a petition to vacate sentence under 28 U.S.C. § 2255. Petitioner was convicted in this Court on drug and weapon charges on March 17,1993. He was sentenced to a term of imprisonment of 232 months. The United States Court of Appeals for the Sixth Circuit affirmed. (Mandate dated June 3, 1994, docket no. 100.) The present petition to vacate sentence relies on two grounds. First, Petitioner argues that under Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the definition of “use” given to the jury at trial was in error and therefore his conviction and sentence are invalid. Second, Petitioner contends that his trial counsel was ineffective for not requesting a severance from Petitioner’s co-defendant, Emmit Yarbrough. Respondent has filed a brief in objection to the first claim, but has not responded to the second.

“Use” Instruction

In reviewing a habeas petition, courts must review an alleged error in jury instructions under the harmless error standard. California v. Roy, — U.S. -, -, 117 S.Ct. 337, 338, 136 L.Ed.2d 266 (1996) (per curiam). In Roy, the Supreme Court upheld the traditional harmless error standard first announced in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See also Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). That standard is whether the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253. In Roy, a state court case of robbery and first degree murder, the federal district court found that no rational juror could have failed to find that the defendant had formulated the requisite intent. Roy, — U.S. at -, 117 S.Ct. at 338. Affirming that analysis, the Supreme Court applied the more deferential [789]*789definition of “harmless error,” urged by the prosecution. The Court specifically rejected the stricter standard under which the error must be found harmless beyond a reasonable doubt. Id. at -, 117 S.Ct. at 339. See also Peck v. United States, 106 F.3d 450, 456-57 (2d Cir.1997) (Section 2255 case wherein court applied Roy methodology’s less onerous, harmless error standard to the instruction’s alleged “misdescription” of an element of the crime); Lyons v. Johnson, 99 F.3d 499, 502 n. 5 (2d Cir.1996) (noting that a Roy -type error, concerning jury instructions, is to be evaluated in habeas petition as a “trial” error, thus falling under Brecht’s deferential standard of harmless error).

Petitioner was found guilty of violating 18 U.S.C. § 924(c), which targets anyone, who, “during and in relation to any ... drug trafficking crime ... uses or carries a firearm.” The definition of “use” as prescribed by the Supreme Court depends on the term’s “ordinary or natural meaning,” but also depends on the statute and the sentencing scheme at issue. Bailey, — U.S. at ---, 116 S.Ct. at 505-06 (1995). Bailey overturned established precedent that evidence of possession alone is sufficient to support a Section 924(c)(1) conviction. Thus, under Bailey, a defendant must be shown to have “actively employed” a gun. Id. at -, 116 S.Ct. at 509. In Bailey’s wake, reaching for a gun under a mattress as police attempt to make an arrest has been held to constitute “use.” See United States v. Anderson, 89 F.3d 1306, 1314 (6th Cir.1996). Under the statute, using a firearm does not require firing the firearm. Bailey, — U.S. at -, 116 S.Ct. at 508. Also, where there is jointly undertaken activity of drug distributing, and evidence of possession of firearms by both defendants, one’s conduct involving a firearm may be imputed to that of a co-conspirator. Pinkerton v. United States, 328 U.S. 640, 646-47, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946); United States v. Martin, 920 F.2d 345, 348 (6th Cir.1990). See also United States v. Christian, 942 F.2d 363, 367 (6th Cir.1991) (finding that a defendant may be convicted under Section 924(c) if a eo-con-spirator used a firearm in connection with a drug-trafficking scheme).

An application of Bailey and Pinkerton to the facts in this case demonstrates there were ample grounds on which to base Petitioner’s conviction. The record establishes that there was jointly undertaken activity of drug distribution and possession of firearms by both defendants. Petitioner’s coconspirator, Yarbrough, reached for a firearm to use against arresting officers. After a struggle with police officers, Yarbrough was prevented from shooting the firearm. Under the circumstances, these actions may be imputed to Petitioner. Further, a sawed-off shotgun with a pistol grip and another short-barreled shotgun were located under the couch where Petitioner had been sitting when the arresting officers entered the residence in question. Linda Ellis saw Petitioner run out of a bedroom carrying a shotgun. There was direct testimony at trial that both Petitioner and Yarbrough carried the firearms found in the residence immediately pri- or to their arrests. Rynold Collins testified that both Petitioner and Yarbrough carried large gym-type bags containing short-barreled shotguns with pistol grips, described by the defendants themselves as street or riot guns. The defendants both stated that they used the guns to protect their drugs, and when asked, they agreed to take the weapons from Linda Ellis’s home. The record as a whole is clear. It demonstrates that no rational juror could have failed to find that the defendant’s conduct constituted “use” under the more narrow definition given to the term under Bailey. See Anderson, 89 F.3d at 1314. See also United States v. Lopez, 100 F.3d 98, 101 (9th Cir.1996) (conviction under Section 924(c) upheld because proper Pinkerton instruction given); United States v. Pimentel, 83 F.3d 55, 58-59 (2d Cir.1996) (same).

Even assuming that the Court erred in its definition of use, the error was harmless. Under the Supreme Court’s analysis enunciated in Roy, the record is insufficient to allow the present petition to be granted. The record contains ample evidence of Petitioner’s conduct to support a finding that he used a firearm under any definition. For the same reason, Petitioner has failed to demonstrate that the error influenced the jury’s verdict. [790]*790See Brecht, 507 U.S. at 637, 113 S.Ct. at 1721. As the Second Circuit stated in Peck, 106 F.3d 450, we conclude that a properly instructed, rational jury would have found the [required element] beyond a reasonable doubt.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pinkerton v. United States
328 U.S. 640 (Supreme Court, 1946)
Kotteakos v. United States
328 U.S. 750 (Supreme Court, 1946)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Zafiro v. United States
506 U.S. 534 (Supreme Court, 1993)
Brecht v. Abrahamson
507 U.S. 619 (Supreme Court, 1993)
Bailey v. United States
516 U.S. 137 (Supreme Court, 1995)
California v. Roy
519 U.S. 2 (Supreme Court, 1996)
Joseph Thomas v. Dale E. Foltz
818 F.2d 476 (Sixth Circuit, 1987)
United States v. Frank Martin
920 F.2d 345 (Sixth Circuit, 1990)
United States v. Norbert Breinig
70 F.3d 850 (Sixth Circuit, 1995)
United States v. Kenneth R. Moore
76 F.3d 111 (Sixth Circuit, 1996)
United States v. Jose Pimentel
83 F.3d 55 (Second Circuit, 1996)
United States v. Jessie Anderson
89 F.3d 1306 (Sixth Circuit, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
955 F. Supp. 787, 1997 U.S. Dist. LEXIS 2545, 1997 WL 101848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dix-v-united-states-miwd-1997.