United States District Court, N.D. Ohio, Eastern Division
ANTHONY J. BOARD, JR., Plaintiff,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER
AARON POLSTER, UNITED STATES DISTRICT JUDGE
case is before the Court upon the Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (“Motion”). Doc
#: 51. For the following reasons, the Motion is
February 8, 2017, Anthony J. Board, Jr., pled guilty without
a plea agreement to one count of possession with the intent
to distribute fentanyl, in violation of 21 U.S.C. §
841(a)(1), and one count of possession of a firearm and
ammunition by a felon, in violation of 18 U.S.C. §
922(g)(1). Doc #: 11. On December 1, 2017, Board was
sentenced to a prison term of 63 months for each count, to
run concurrently. Doc #: 34 at 2. Board appealed, challenging
a sentencing enhancement for felon in possession of a firearm
in connection with another felony offense pursuant to
U.S.S.G. § 2K2.1(b)(6)(B) and the Bureau of Prison's
alleged failure to credit his previously-served jail time.
Doc #: 35. The Court of Appeals affirmed Board's
conviction and sentence. Doc #: 46. Board now brings the
instant Motion. Doc #: 51.
28 U.S.C. § 2255(a), a federal district court may grant
relief to a prisoner in custody under a sentence imposed by
upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.
28 U.S.C. § 2255(a).
4(b) of the Rules Governing Section 2255 Proceedings requires
the judge to whom the 2255 petition is assigned to properly
examine the petition. Rule 4(b) provides in pertinent part as
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
C. Rules Governing Section 2255 Proceedings, 6 Orfield's
Criminal Procedure Under the Federal Rules Appendix C. The
Court has promptly examined the Motion, the record in the
underlying criminal case, and the case law and finds that it
plainly appears that Anthony J. Board, Jr. is not entitled to
relief in the district court for the following reasons.
Board's grounds for relief stem from ineffective
assistance of counsel claims. Claims for ineffective
assistance of counsel are analyzed under the standard in
Strickland v. Washington, 466 U.S. 668 (1984). To
prevail on a claim of ineffective assistance of counsel, the
petitioner must establish two elements: (1) counsel's
performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability
that, but for counsel's deficiency, the outcome of the
proceedings would have been different. Lance v.
Sellers, 139 S.Ct. 511, 514, 202 L.Ed.2d 621 (2019)
(citing Strickland, 466 U.S. at 688). A review of
counsel's performance must be highly deferential and
requires the courts to “indulge a strong presumption
that counsel's conduct falls within a wide range of
reasonable professional assistance.” Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quoting
Strickland, 466 U.S. at 689).
first ground for relief, Board argues that his counsel
wrongfully withdrew his objection to the four-level
sentencing enhancement pursuant to U.S.S.G. §
2K2.1(b)(6)(B), thereby waiving his right to pursue the issue
on appeal. Doc #: 51-1 at 6. “The § 2K2.1(b)(6)(B)
enhancement applies to defendants who ‘used or
possessed any firearm or ammunition in connection with
another felony offense'” when “the firearm or