United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
Petitioner Antione Boyce has filed a motion, pursuant to 28 U.S.C. § 2255, to vacate his conviction and sentence. The court has reviewed all of the briefs. For the reasons stated below, Boyce's motion will be denied.
On August 21, 2007, Boyce was indicted for Hobbs Act conspiracy, 18 U.S.C. § 1951(a), conspiracy to distribute narcotics, 21 U.S.C. §§ 841, 846, possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and possession of a firearm in furtherance of those crimes, 18 U.S.C. § 924(c). The charges arose from Boyce's involvement in a scheme to rob a drug dealer. He was ultimately convicted on all four counts.
The evidence introduced at trial, which began May 5, 2008, included the following: Alonzo McLaughlin, who was cooperating with the government, made contact with one of Boyce's co-defendants, Rahsean Holmes, during the summer of 2007. (Trial Tr. Day 2 at 218:1-219:13.) At that time, Holmes proposed to McLaughlin that they rob other drug dealers and use the help of "Dallas, " whom McLaughlin identified as Boyce, in doing so. ( Id. at 222:11-225:22; see also Trial Tr. Day 3 at 151:13-1533:13 (noting a later discussion in which another co-defendant mentioned Boyce as someone who could help with the planned robberies).) McLaughlin relayed this information to Drug Enforcement Agency ("DEA") agents with whom he was working, and the agents instructed him to continue spending time with Holmes and to convey that he, McLaughlin, was interested in participating in the robberies. ( Id. at 223:21-24, 227:5-23.) As he spent time with Holmes, McLaughlin gathered information that revealed Boyce and Holmes had worked together to traffic and sell cocaine, as well as to rob other drug dealers. ( E.g., Trial Tr. Day 2 at 228:9-21; Trial Tr. Day 3 at 5:5-21, 150:4-21, 154:10-155:13, 156:15-24.)
As Holmes was planning two home invasions and robberies, the DEA had McLaughlin tell Holmes about a fictionalized associate of McLaughlin's who would be coming into town with eight to ten kilograms of cocaine and marijuana. (Trial Tr. Day 4 at 39:10-42:17.) Holmes expressed an interest in robbing the associate and began making preparations. ( Id. at 42:3-7, 42:23-43:10.) On August 15, 2007, McLaughlin told Holmes they could rob the "drug dealer" that day. Holmes reached out to Boyce and another co-defendant to help, ( id. at 52:20-23, 53:13-19), and told McLaughlin they would use Boyce's van, as well as get guns and handcuffs from Boyce to restrain the victims, ( id. at 62:3-23, 63:2-14, 66:9-16). McLaughlin left Holmes and joined DEA agents at a hotel in Baltimore from which he sent Holmes a text telling him he saw six kilograms of cocaine, which the agents understood to be a signal to come to the hotel to commit the robbery. ( Id. at 68:21-71:25.)
Detective William Denford, a task force officer with the DEA, was positioned near the hotel and had been directed to arrest Holmes and any associates who were with him when they arrived. (Trial Tr. Day 5 at 105:1-8, 107:2-10.) Detective Denford had been informed that Holmes would be driving a silver Chrysler. ( Id. at 107:6-12.) He saw the Chrysler arrive, but when a SWAT team positioned near the hotel attempted to stop it, the car began to flee. ( Id. at 108:17-23, 234:12-20.) A high-speed chase ensued, during which the Chrysler hit two law enforcement vehicles. ( Id. at 108:24-113:21.) Eventually, the Chrysler crashed into a pole and stopped. ( Id. at 115:11-116:2.) At that time, Holmes and the passenger were removed from the car and arrested. ( Id. at 117:15-21.)
DEA Special Agent Patrick McCurry was a passenger, along with other DEA agents, in a vehicle following the Chrysler as it fled police. ( Id. at 233:3-23, 235:19-236:5.) As McCurry's vehicle was following the path of the Chrysler, he noticed a male subject attempting to conceal himself in the backyard of a corner house by crouching beside a child's playhouse. ( Id. at 239:20-240:8, 242:21-243:2.) At trial, McCurry identified the person he saw crouching as Boyce. ( Id. at 243:15-244:7.) Several civilian witnesses also testified to seeing Boyce in the neighborhood. ( Id. at 165:16-167:13, 196:4-198:4, 208:19-211:14, 224:1-225:1.) One witness testified that she saw Boyce jump out of the Chrysler and then later offer to pay her money to walk with him to another road. ( Id. at 208:19-209:11, 210:19-24.)
After the chase ended, McCurry and other agents returned to the backyard and recovered two loaded handguns-one from inside the playhouse and one leaned against the yard's fence. ( Id. at 147:17-22, 248:19-22, 250:19-21, 251:15-16, 252:10-14.) Later, DEA investigators executed a search warrant for a residence of Boyce's family members. There, the investigators found Boyce's van-which Holmes proposed to use in the robbery and which he did use in an earlier controlled buy-and were able to operate it with keys recovered from the area of the earlier chase. (Trial Tr. Day 6 at 31:21-32:12.) They also found a kilo press, a device used to prepare cocaine for sale. ( Id. at 39:1-24.) McLaughlin testified at trial that Boyce was known to have a kilo press. (Trial Tr. Day 4 at 67:10-22.)
Boyce raises several claims that he argues require this court to vacate his conviction or set aside his sentence. First, he claims the court erroneously enhanced his sentence pursuant to 21 U.S.C. § 851. Second, he claims his trial counsel was ineffective for 1) failing to subpoena alibi witnesses, 2) failing to argue that the government's evidence was insufficient to prove any of the counts for which he was convicted, and 3) failing to argue that his sentence could not be enhanced under 21 U.S.C. § 851. All of Boyce's claims fail.
I. Enhancement of Boyce's Sentence
Boyce claims that the court improperly enhanced his sentence pursuant to 21 U.S.C. § 851 because the state convictions on which the enhancement was based are "misdemeanors" under state law. (Pet., ECF No. 247-1, at 11-12.) Boyce did not raise this claim on direct appeal, however, see United States v. Holmes, 376 F.Appx. 346, 349-50 (4th Cir. 2010) (indicating Boyce challenged the enhancement of his sentence on the basis that the predicate convictions were not referenced in the indictment), which he seems to acknowledge, ( see Pet. at 13 (noting that he is bringing the challenge under a claim of "actual innocence" so he does not have to demonstrate cause and prejudice)). By not raising it on direct appeal, and by failing to demonstrate cause and prejudice or his actual innocence, the argument is waived. See United States v. Mikalajunas, 186 F.3d 490, 492-94 (4th Cir. 1999).
Even if the argument cannot be said to be waived, it fails because the predicate convictions provided a proper basis for enhancement. Where a defendant is convicted of conspiracy to distribute and possess with the intent to distribute narcotics, as Boyce was here, 21 U.S.C. § 841(b)(1)(B) provides for a mandatory minimum sentence of five years and a maximum of forty years. Where, however, a defendant has a prior conviction for a felony drug offense, the mandatory minimum is increased to ten years, and the mandatory maximum to life imprisonment. 21 U.S.C. § 841(b)(1)(B). A "felony drug offense" is defined as "an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State... that prohibits or restricts conduct relating to narcotic drugs." 21 U.S.C. § 802(44). The nominal classification of an offense as a "misdemeanor" does not determine whether it can be used as a predicate conviction, as Boyce argues. See Burgess v. United States, 553 U.S. 124, 129-30 (2008). It turns instead on the length of the maximum sentence the defendant faced in the prior proceeding and the offense's relation to drugs. Here, the court relied on two ...