United States v. Smith , 136 F. Supp. 3d 4 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 90-143 (RWR)
)
BILLY RAY SMITH, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Defendant Billy Ray Smith has filed pro se two motions
under 28 U.S.C. § 2255 to vacate the sentence imposed upon him
for his supervised release violation, alleging that he is
actually innocent and that the court lacked jurisdiction to
impose that sentence. The government opposes Smith’s motions,
arguing that Smith’s claims are procedurally defaulted because
he failed to raise them on direct appeal. Because Smith did not
file a direct appeal of his sentence and has not demonstrated
cause and actual prejudice to overcome procedural default, nor
has he provided a jurisdictional challenge with any merit or
facts to support his claim of actual innocence, his motions will
be denied.
BACKGROUND
In 1990, a jury found Smith guilty of distribution of
cocaine base. Judge Hogan sentenced Smith to 240 months of
incarceration followed by three years of supervised release.
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Smith filed a timely notice of appeal, and the D.C. Circuit
affirmed Smith’s conviction. United States v. Smith, No. 92-
3055, 1996 WL 397489, at *1 (D.C. Cir. July 5, 1996).
Smith’s term of supervised release began in January of
2013. See 5/8/14 Report & Recommendation (“R&R”), ECF No. 144
at 1. In July of 2013, the Probation Office filed a petition
alleging that Smith violated the condition of his supervised
release that he not commit another crime. See 7/1/13 Prob.
Pet., ECF No. 129 at 1. He had been arrested in June of 2013
and charged with possession with intent to distribute cocaine
and possession of marijuana. See id. at 1. A District of
Columbia Superior Court jury found Smith guilty of both charges.
See 4/2/14 Prob. Pet., ECF No. 143 at 1. Smith later conceded
that he violated his supervised release as alleged. See R&R at
2. On October 3, 2014, Smith’s term of supervised release
imposed by Judge Hogan was revoked and Smith was sentenced to 18
months in prison to be served consecutively to his Superior
Court term of imprisonment. See 10/10/14 J. & Commitment, ECF
No. 149 at 2.
Smith filed two motions pro se on February 23, 2015
collaterally attacking the sentence imposed for his supervised
release violation. See 28 U.S.C. § 2255 Mot. for Release Order,
ECF No. 151; Mot. under 28 U.S.C. § 2255 - Fed. Rules Civ. P.
15(d) to Void Judgment, Amend 2255 and Order Where Court Has New
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Evidence and Not Replied or Returned a Filed Copy or Order to
D.A. (“Mot. to Void Judgment”), ECF No. 152. In the first
motion,1 Smith asserts that “he is innocent” and that the
judgment imposed on October 3, 2014 is “void for want of
jurisdiction.” Mot. for Release Order at 1. The government
opposes Smith’s motions and argues that his motion should be
summarily denied because Smith has procedurally defaulted on his
claims. See Govt.’s Opp’n to Def.’s 28 U.S.C. § 2255 Motion for
Release Order & Mot. to Void Judgment under 28 U.S.C. § 2255 -
Fed. R. Civ. P. 15(d) to Void Judgment, Amend 2255 and Order
Where Court Has New Evidence and Not Replied or Returned a Filed
Copy of Order to D.A. (“Govt.’s Opp’n”), ECF No. 158 at 1.
1 Smith’s pro se filings are being construed liberally, as
they must be. See, e.g., Williams v. Gonzales, 567 F. Supp. 2d
148, 149 (D.D.C. 2008) (“The Court is not bound by a pro se
litigant’s characterization of his cause of action. Rather a
court must determine the proper characterization of a filing by
the nature of the relief sought[.]”); Abdelfattah v. U.S. Dep't
of Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (“A
document filed pro se is to be liberally construed, . . . and a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))).
But Smith’s second motion is indecipherable. Smith begins by
referring to Yaser Hamdi, the criminal case of Dzhokhar
Tsarnaev, and the Ku Klux Klan, and ends with vague references
to George H.W. Bush. See Mot. to Void Judgment at 1. Because
Smith’s second motion does not provide any facts that appear
relevant to, let alone add support for, § 2255 relief, the
second motion will be denied.
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DISCUSSION
In a § 2255 motion, a petitioner can move the sentencing
court to “vacate, set aside or correct the sentence” if “the
sentence was imposed in violation of the Constitution or laws of
the United States, or [if] the court was without jurisdiction to
impose such sentence, or [if] the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack[.]” 28 U.S.C. § 2255(a). A prisoner asserting a § 2255
collateral challenge, “in order to gain relief under any claim,
is obliged to show a good deal more than would be sufficient on
a direct appeal from his sentence. Section 2255 is not a
substitute for a direct appeal.” United States v. Pollard, 959
F.2d 1011, 1020 (D.C. Cir. 1992) (citing United States v. Frady,
456 U.S. 152, 165 (1982)). Where a prisoner files a habeas
petition that raises a claim that is “neither jurisdictional nor
constitutional” and involves neither a “fundamental defect which
inherently results in a complete miscarriage of justice, nor an
omission inconsistent with the rudimentary demands of fair
procedure[,]” such a case “does not present ‘exceptional
circumstances where the need for the remedy afforded by the writ
of habeas corpus is apparent.’” Hill v. United States, 368 U.S.
424, 428 (1962) (quoting Bowen v. Johnston, 306 U.S. 19, 27
(1939)). The burden lies on the petitioner to prove the
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violation by a preponderance of the evidence. United States v.
Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
A prisoner may not raise claims collaterally attacking his
sentence for the first time in a § 2255 motion; the prisoner
must first raise his claims on direct appeal. The Supreme Court
explained the justification for such a rule as follows:
Once the defendant’s chance to appeal has been
waived or exhausted, however, we are entitled to
presume he stands fairly and finally convicted,
especially when, as here, he already has had a
fair opportunity to present his federal claims to
a federal forum. Our trial and appellate
procedures are not so unreliable that we may not
afford their completed operation any binding
effect beyond the next in a series of endless
post-conviction collateral attacks. To the
contrary, a final judgment commands respect. For
this reason, we have long and consistently
affirmed that a collateral challenge may not do
service for an appeal.
United States v. Frady, 456 U.S. 152, 164-65 (1982) (citations
omitted). Failure to raise claims on direct appeal may result
in procedural default where the prisoner fails to show cause for
the failure to raise those arguments on direct appeal, or show
actual prejudice from errors of which the prisoner complains.
See, e.g., United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.
Cir. 2003) (“Where a defendant has procedurally defaulted a
claim by failing to raise it on direct review, the claim may be
raised in habeas only if the defendant can first demonstrate
either cause and actual prejudice, or that he is actually
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innocent.” (quoting Bousley v. United States, 523 U.S. 614, 622
(1998)) (internal quotation marks omitted)).
To demonstrate actual prejudice, the petitioner must show
“not merely that the errors at his [underlying proceeding]
created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire
[proceeding] with error of constitutional dimensions.”
Pettigrew, 346 F.3d at 1144 (quoting Frady, 456 U.S. at 170). A
petitioner “must at least demonstrate that ‘there is a
reasonable probability that, but for [the errors], the result of
the proceeding would have been different.’” Id. (quoting United
States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)). This
“‘showing of prejudice’ required to overcome procedural default
on collateral review ‘is significantly greater than that
necessary’ to establish plain error on direct review.” Id.
(quoting Murray v. Carrier, 477 U.S. 478, 493-94 (1986)). On
collateral review, the petitioner “‘bears the burden of
persuasion’ in showing that the ‘error . . . affected the
outcome of the district court proceedings.’” Id. at 1144-1145
(quoting United States v. Olano, 507 U.S. 725, 734 (1993)). A
petitioner may demonstrate cause for failure to raise a claim on
direct appeal where a claim “is so novel that its legal basis is
not reasonably available to counsel.” Bousley v. United States,
523 U.S. 614, 622 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16
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(1984)) (internal quotation marks omitted). Finally, a
petitioner may demonstrate actual innocence by showing that “in
light of all the evidence, it is more likely than not” that no
reasonable fact finder would have found the charged misconduct
to have been proven. Id. at 623 (citing Schlup v. Delo, 513
U.S. 298, 327-328 (1995)) (internal quotations marks omitted).
“A district judge must grant a prompt hearing under § 2255
unless ‘the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.’”
Pollard, 959 F.2d at 1030 (quoting 28 U.S.C. § 2255). However,
“[a] judge need not conduct an evidentiary hearing before
denying a petition for relief under § 2255 when ‘the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.’” United States v. Morrison,
98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255)
(noting that it is within the court’s discretion whether to hold
a hearing when it is the same court that presided over the
petitioner’s criminal proceedings).
Smith’s claims will be resolved without an evidentiary
hearing. The undersigned presided over the probation violation
and sentencing proceedings in the district court. Familiarity
with the facts and issues at sentencing and available pleadings
provide the information necessary to resolve Smith’s motion. As
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is discussed below, the pleadings and record establish
conclusively that Smith is not entitled to the relief he seeks.
Smith did not file an appeal of his October 3, 2014
sentence, even though Smith received notice of his right to
appeal his sentence. See 10/10/14 J. & Commitment at 3. The
claims that Smith raises in the instant motions are raised on
collateral review for the first time. In order to avoid
procedural default, Smith must demonstrate cause and actual
prejudice, or actual innocence.
Smith’s two motions do not demonstrate cause or actual
prejudice. Smith does not base his claims on any new legal
authorities that would have been unavailable to him at the time
he could have filed a timely appeal. Indeed, the case law he
cites, albeit unrelated to the legal issues present in his
§ 2255 motion, date back to 1978. See Mot. for Release Order at
1 (citing Michigan v. Doran, 439 U.S. 282 (1978)). Moreover,
Smith has alleged no facts to show actual prejudice, or that the
errors he alleges placed him at an “actual and substantial
disadvantage” and that the alleged errors “affected the outcome
of the district court proceedings.” Pettigrew, 346 F.3d at
1144-45. From what can be deciphered from Smith’s motion, the
only errors that Smith alleges is that the district court lacked
jurisdiction and that he was deprived of notice and the right to
a fair hearing. Mot. for Release Order at 1.
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Smith’s challenge to the jurisdiction of the court, in
essence, is that the federal district court lacked jurisdiction
to sentence him for violations of his supervised release
conditions and that the D.C. Superior Court retained exclusive
jurisdiction over the crimes that he committed. Id. at 1
(“[There is a] Due Process of law violation where there is no
notice and no hearing and no such thing as a[] Federal Crime of
concurrent Jurisdiction under the Sixth Amendment.”); see also
Reply to Govt.’s Opp’n (“Reply”), ECF No. 159 at 2.
Smith’s challenge to the court’s jurisdiction is without
merit. Smith was convicted of a federal crime in June 1990, and
his sentence included a term of three years of supervised
release. Federal courts retain jurisdiction over cases
involving violations of conditions of supervised release. See
18 U.S.C. § 3583(e); United States v. Raheman-Fazal, 130 Fed.
App’x. 485, 486 (1st Cir. May 11, 2005). The federal district
court possessed jurisdiction to sentence Smith following
violations of his supervised release terms.
Furthermore, Smith has presented no evidence that he was
deprived of notice or the right to a fair hearing. After the
Probation Office filed a petition informing the court of Smith’s
supervised release violations, Smith appeared before the
magistrate judge in a preliminary revocation hearing on
February 29, 2014. Smith was later convicted by a D.C. Superior
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Court jury of possession with intent to distribute cocaine and
possession of marijuana. Following Smith’s conviction, the
magistrate judge held a hearing at which Smith conceded that he
violated his supervised release term by committing the offenses
for which he was convicted in D.C. Superior Court. R&R at 3.
The magistrate judge issued a report reflecting Smith’s
concession, and recommended that Smith’s term of supervised
release be revoked. R&R at 3. Smith filed no objection to the
report or recommendation. At the final hearing on October 3,
2014, the undersigned sentenced Smith to 18 months of
incarceration, with no additional term of supervised release.
Smith did not appeal this sentence. There is nothing in the
record to support Smith’s claim that he was deprived of his due
process rights to notice and a fair hearing. The record shows
that Smith was afforded adequate notice and the right to a fair
hearing. Smith’s claim to the contrary is without basis.
Smith also provides no factual evidence to support his
claim of actual innocence. See Mot. for Release Order at 1. He
provides no evidence to challenge the validity of his conviction
by a Superior Court jury for the D.C. Code drug possession
charges. He does not allege any facts that contradict the
court’s finding that he concededly violated the terms and
conditions of his supervised release. Courts may deny wholly
conclusory claims and claims entirely unsupported by facts.
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See, e.g., Sanders v. United States, 373 U.S. 1, 19 (1963)
(“Petitioner’s first motion under § 2255 was denied because it
stated only bald legal conclusions with no supporting factual
allegations. The court had the power to deny the motion on this
ground[.]”); United States v. Smith, No. 97-3121, 1998 WL
939501, at *2 (D.C. Cir. Dec. 14, 1998) (affirming denial of
§ 2255 motion by district court where petitioner alleged
“virtually no facts.”); United States v. Geraldo, 523 F. Supp.
2d 14, 22 (D.D.C. 2007) (“[C]onclusory arguments may be
summarily dismissed by the Court.”). Smith’s claim of actual
innocence is without merit and cannot serve as a basis to
collaterally attack his sentence.
When the district court enters a final order resolving a
petition under 28 U.S.C. § 2255 that is adverse to the
petitioner, it must either issue or deny a certificate of
appealability. Rules Governing Section 2255 Proceedings for the
United States District Courts, Rule 11(a). By statute, “[a]
certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing
demands that Smith demonstrate that “reasonable jurists could
debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Slack v. McDaniel,
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529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). For the reasons set forth above,
Smith has failed to make that showing in this case, and,
accordingly, no certificate of appealability shall be issued.
To the extent Smith intends to file an appeal, he must seek a
certificate of appealability from the United States Court of
Appeals for the District of Columbia Circuit in accordance with
Federal Rule of Appellate Procedure 22(b).
CONCLUSION
Smith fails to demonstrate cause and actual prejudice in
order to avoid procedural default on his § 2255 claims.
Furthermore, Smith fails to provide factual support for his
claim of actual innocence, and his jurisdictional challenge
lacks merit. Therefore, Smith’s § 2255 motions will be denied.
A separate Order accompanies this Memorandum Opinion.
SIGNED this 5th day of October, 2015.
_________/s/_____________
RICHARD W. ROBERTS
Chief Judge