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Smith v. United States

United States District Court, W.D. Tennessee, Western Division

September 14, 2017

BOBBY DEANGELO SMITH Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is Bobby DeAngelo Smith’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “§ 2255 Motion”). (§ 2255 Mot., ECF No. 1.) On April 2, 2014, the Court ordered Smith to file an amended § 2255 Motion on an official form. (ECF No. 4.) On June 6, 2014, Smith filed a timely Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the “Amended § 2255 Motion”). (Am. § 2255 Mot., ECF No. 5.) Smith moved to supplement his Amended § 2255 Motion on May 26, 2015. (Supp. § 2255 Mot., ECF No. 17.) The Court granted that motion on November 7, 2016. (ECF No. 22.) The Government responded to Smith’s supplement on November 14, 2016. (ECF No. 23.) The Government responded to Smith’s Amended § 2255 Motion on June 9, 2017. (ECF No. 27.) Smith filed a reply and a motion for evidentiary hearing on September 5, 2017. (ECF No. 31.)

         For the following reasons, the Amended § 2255 Motion is DENIED. Smith’s request for relief under Johnson and request for an evidentiary hearing are also DENIED.

         I. BACKGROUND

         On June 26, 2008, the grand jury returned an indictment charging Smith and Regina Hinton with four counts of counterfeiting United States currency with intent to defraud, in violation of 18 U.S.C. § 471, and four counts of knowingly possessing and concealing counterfeit United States currency, in violation of 18 U.S.C. § 472. (Indictment 1-8, Cr. ECF No. 14.)[1] The indictment also charged Smith with one count of knowingly possessing a firearm and one count of knowingly possessing ammunition after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g). (Id. at 9-10.) A Superseding Indictment also charged Smith and Hinton with one count of conspiracy, one count of counterfeiting with intent to defraud, one count of knowingly attempting to pass counterfeit money, and one count of knowingly possessing and concealing counterfeit money; it charged Smith with one count of possessing a firearm and one count of possessing ammunition after having been convicted of a felony. (Superseding Indictment 1-7, Cr. ECF No. 76.) A Second Superseding Indictment further charged Smith, Hinton, and Smith’s mother, Dannette Ross, with conspiracy to corruptly influence or impede an official proceeding, and attempting to influence or impede an official proceeding, in violation of 18 U.S.C. § 1512(c)(2). (Second Superseding Indictment 1-10, Cr. ECF No. 96.)

         Smith was represented by Stephen R. Leffler, who filed a motion on Smith’s behalf to suppress evidence found by U.S. Secret Service agents at Hinton’s apartment, statements made by Smith and Hinton to the agents, and the fruits of the allegedly illegal search. (See Cr. ECF No. 198.) Smith argued that the Fourth Amendment protected him against the agents’ search of Hinton’s apartment and that Hinton’s consent to the search was coerced. The Court referred the motion to the Magistrate Judge for hearing and recommendation. (See Cr. ECF No. 199.) At the hearing, Hinton invoked her Fifth Amendment right not to testify. (Suppression Hr’g Tr., Cr. ECF No. 251 at 625-26.) On August 16, 2010, after the hearing and additional briefing, United States Magistrate Judge Tu M. Pham filed a Report and Recommendation, recommending denial of Smith’s motion. (Cr. ECF No. 243 at 22.) Smith objected and also moved to dismiss for violation of his right to a speedy trial. (Cr. ECF No. 264.) The Court denied Smith’s motion to dismiss, overruled Smith’s objections, and adopted the Magistrate Judge’s Report and Recommendation (the “Report”). (Cr. ECF No. 267.)

         The case proceeded to trial on November 30, 2010. (Cr. ECF No. 296.) Hinton testified that she “thought [she] heard” or did hear a promise by law enforcement to release her and Smith in exchange for the counterfeiting printer (Trial Tr., Cr. ECF No. 369-1 at 2067:16-25 – 2068:1-3.) Leffler moved for a mistrial, arguing that Hinton’s trial testimony undercut the basis for the probable cause for the search of her apartment. (Trial Tr., Cr. ECF No. 369-1 at 2081:1-25 – 2082:1-3.) The Court denied the motion, finding that even if “[Hinton’s] testimony [had] been heard at the suppression hearing . . . the motion still would have been denied.” (Id. at 2083:9-24.)

         On December 3, 2010, a jury convicted Smith on all counts. (Jury Verdict, Cr. ECF No. 302.) At his sentencing, the Court determined that Smith was an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because Smith had two prior convictions for aggravated robbery and one prior conviction of aggravated robbery (amended to robbery) under Tennessee law. (Sentencing Hr’g Tr., Cr. ECF No, 368-9 at 1776:3-4; see also Presentence Investigation Report (“PSR”) ¶¶ 39, 48-50.) The Court sentenced Smith to 252 months in prison followed by three years of supervised release. (Sentencing Hr’g Tr., Cr. ECF No. 368-9 at 1779:20-25 – 1780:1.)

         Smith filed a direct appeal to the Sixth Circuit. He challenged the Court’s denial of his motion to dismiss for violation of his right to a speedy trial. (United States v. Smith, No. 11-5520 (6th Cir.), ECF Nos. 1, 62.) William E. Hunt was Smith’s appellate counsel. (See id., ECF Nos. 20, 62.) The Sixth Circuit affirmed on January 7, 2013. (Cr. ECF No. 375.) The mandate issued on January 29, 2013. (Cr. ECF No. 376.)

         Smith filed the § 2255 Motion on March 31, 2014. (ECF No. 1.) The Court ordered Smith to file an amended § 2255 Motion on an official form on April 2, 2014. (ECF No. 4.) Smith filed a timely amended motion on June 6, 2014. (Am. § 2255 Mot., ECF No. 5.) Smith moved to supplement his Amended § 2255 Motion on May 26, 2015. (Supp. § 2255 Mot., ECF No. 17.) The Court granted that motion on November 7, 2016. (ECF No. 22.) In his Amended § 2255 Motion and his supplement, Smith states eight grounds for relief: (1) ineffective assistance of appellate counsel (Ground One) (Am. § 2255 Mot., ECF No. 5 at 34); (2) ineffective assistance of trial counsel (Grounds Two, Three, Five, Six, and Seven) (id. at 35-37); (3) error by Trial Judge (Ground Four) (id. at 38); and (4) application of Johnson v. United States, 135 S.Ct. 2551 (2015) (Ground Eight)(Supp. § 2255 Mot., ECF No. 18 at 148).

         On September 30, 2016, the U.S. Probation Office for the Western District of Tennessee circulated a memorandum addressing Smith’s sentence (the “Probation Memorandum”). The Probation Memorandum concludes that Smith is not entitled to relief under Johnson. (Probation Mem. at 1–2.) It states that Smith’s prior robbery and aggravated robbery convictions are categorical violent felonies under the “use-of-force” clause of the ACCA. (Id. at 2.)

         The Government filed a response to Smith’s supplement on November 14, 2016, arguing that Smith is not entitled to Johnson relief. (ECF No. 23.) The Government filed a response to Smith’s Amended § 2255 Motion on June 9, 2017, arguing Smith is not entitled to relief on any ground. (ECF No. 27.) Smith filed a response and motion for evidentiary hearing on September 5, 2017. (ECF No. 31.)

         II. LEGAL STANDARDS

         A. Section 2255 Motions

         Smith seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.) Under § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         “To succeed on a § 2255 motion, a prisoner in custody must show ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.’” McPhearson v. United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir. 2003)).

         A prisoner must file his § 2255 motion within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

         Ineffective assistance of counsel can serve as a ground for § 2255 relief. See, e.g., Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012). The standard for ineffective assistance is provided by Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance, “[f]irst, the defendant must show that counsel’s performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687. “Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.” Id.

         To demonstrate deficient performance, a petitioner must show that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. In considering an ineffective-assistance claim, a court “must apply a ‘strong presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional assistance. . . . The challenger’s burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 687, 689).

         To demonstrate prejudice, a petitioner must establish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. . . . The likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 111–12 (citing Wong v. Belmontes, 558 U.S. 15, 27 (2009); Strickland, 466 U.S. at 693).

         “[A] court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697. If a reviewing court finds a lack of prejudice, it ...


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