United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE.
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.)
following reasons, the Amended § 2255 Motion is DENIED.
Smith’s request for relief under Johnson and
request for an evidentiary hearing are also DENIED.
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.) 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.)
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.
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.)
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.)
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.)
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).
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.
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.)
Section 2255 Motions
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).
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)).
prisoner must file his § 2255 motion within one year of
the latest of:
(1) the date on which the judgment of conviction becomes
(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
(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).
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
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).
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).
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 ...