Smith v. United States
| Decision Date | 07 February 2018 |
| Docket Number | CASE No. 3:16-cv-2014(RNC) |
| Parties | MICHAEL SMITH, Petitioner, v. UNITED STATES, Respondent. |
| Court | U.S. District Court — District of Connecticut |
Petitioner Michael Smith, a federal inmate, brings this action pro se under 28 U.S.C. § 2255. He claims the evidence is insufficient to support his conviction, the government presented perjured testimony, he was denied the right to confront witnesses against him, and his counsel was constitutionally ineffective. The Government argues that the claims should be dismissed without a hearing because they were rejected on appeal and lack merit. I agree and therefore deny the petition.
Smith was the subject of a wiretap investigation that confirmed his leadership role in a drug distribution conspiracy. He was indicted on one count of possession with intent to distribute cocaine and one count of conspiracy to distribute and to possess with intent to distribute 280 grams or more of cocaine base and five kilograms or more of cocaine. The case was tried to a jury. The evidence showed that Smith frequently purchased wholesale quantities of cocaine and cocaine base ("crack") for resale to street sellers, some of whom were co-defendants.
Smith moved for a judgment of acquittal at the close of the government's case and again after the close of the evidence on the ground that the evidence was insufficient to support a guilty verdict. Both motions were denied.
The verdict form contained a series of questions. The form required the jury to state whether the government had proven the two elements of the conspiracy charge beyond a reasonable doubt. The form stated that if the government had met this burden, the jury would have to answer questions concerning drug type and quantity.
The jury was instructed that a quantity of drugs was attributable to Smith if during the existence of the conspiracy and in furtherance of its unlawful objectives, he and a co-conspirator engaged in a transaction involving that quantity or other conspirators engaged in a transaction involving that quantity and it was reasonably foreseeable to Smith that they would do so.
The jury convicted Smith on the conspiracy charge (as well as the possession charge) and found that his acts in furtherance of the conspiracy and the reasonably foreseeable acts of others made him responsible for 280 grams or more of cocaine base and 500 grams or more of cocaine.
Smith filed a post-trial motion for acquittal or for a new trial challenging the sufficiency of the evidence as to the amount of cocaine base attributable to him under the conspiracy count. See Motion for Acquittal, United States v. Smith, 3:12-cr-105 (D. Conn.) (ECF No. 1152). The motion was denied and Smith was sentenced to ten years' imprisonment, the mandatory minimum required by the jury's verdict. See 21 U.S.C. § 841(b)(1)(A) ().
Smith appealed both his conviction and sentence. He was represented on appeal by the same counsel who represented him at trial. He claimed that a motion to suppress wiretap evidence should have been granted. He also claimed that his motions for acquittal based on the insufficiency of the evidence should have been granted. App.'s Brief at 26-33, United States v. Smith, No. 14-2801 (2d Cir.) (ECF No. 27). Though his main brief limitedthe insufficiency claim to the government's proof of drug quantity, id., his reply brief included a broader argument contesting the sufficiency of the evidence to prove that he engaged in a conspiracy involving any quantity. See App.'s Reply at 3-14, id. (ECF No. 51).
The Court of Appeals affirmed. United States v. Smith, 629 F. App'x 57 (2d Cir. 2015). The Court expressly rejected Smith's argument that the evidence is insufficient to support the jury's verdict regarding drug quantity. Id. at 58-59. At the conclusion of the opinion, the Court stated, "[w]e have considered all of Smith's arguments and find them to be without merit." Id. at 60.
Smith claims that he asked his counsel to file a petition for rehearing en banc and a petition for a writ of certiorari but his counsel failed to comply with his requests. He filed a pro se petition for a writ of certiorari, which was denied. Smith v. United States, 136 S. Ct. 1684 (Apr. 18, 2016).
To obtain relief under § 2255, a petitioner must show that his "sentence was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. A claim iscognizable under § 2255 if it involves a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. Hill, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Pursuant to the "mandate rule," a § 2255 motion generally does not provide an opportunity to relitigate issues that were raised and considered on direct appeal. Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). The mandate rule also "precludes re-litigation of issues impliedly resolved by the appellate court's mandate." Id. (citing United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)). In addition, if a petitioner failed to raise a claim that was ripe for review on direct appeal, the claim is procedurally barred unless he "establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence." United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011).
Smith claims that (1) the government presented insufficient evidence to convict him on the conspiracy count; (2) the government knowingly presented perjured testimony by an investigative officer; (3) he was denied his right to confront witnesses against him when the government and his counsel failedto call an investigative officer;1 and (4) his trial and appellate counsel provided ineffective assistance. These claims are unavailing for the reasons set forth below.
Smith claims that the evidence is insufficient to support the conspiracy conviction. As just mentioned, Smith made this argument to the Court of Appeals in his reply brief. The Court's opinion can be interpreted to include an express rejection of the claim. See Smith, 629 F. App'x at 59 . At a minimum, the issue was impliedly resolved against Smith.
To determine whether an issue has been impliedly resolved, courts "look to both the specific dictates of the remand order as well as the broader spirit of the mandate." Ben Zvi, 242 F.3d at 95. The mandate rule bars relitigation when "the factual predicates of [different] claims, while not explicitly rejectedon direct appeal, were nonetheless impliedly rejected by the appellate court mandate." Yick Man Mui, 614 F.3d at 53.
Here, the Court expressly rejected Smith's argument that the evidence is insufficient to support the jury's verdict regarding drug quantity. The Court's ruling impliedly rejected Smith's argument that the evidence is insufficient to prove his involvement in a conspiracy involving any quantity. Smith could not be held accountable for 280 grams of cocaine base and 500 grams of cocaine unless the evidence established that those quantities were distributed by him or others in furtherance of the conspiracy.
If the Court of Appeals did not resolve Smith's insufficiency claim, the claim is barred because he failed to properly raise it on appeal and has not shown cause and prejudice to excuse the procedural default.2 Demonstrating "cause" requires a showing that "some objective factor external to the defense impeded counsel's efforts" to raise the claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Smith offers no explanation for why the insufficiency claim concerning the conspiracyconviction was not raised in his main brief on appeal. Nor does he explain how the omission prejudiced him. Instead, he merely repeats his argument that the evidence is insufficient. See Pet.'s Reply at 3 (ECF No. 7) ("[T]he insufficient evidence is the cause and prejudice of this verdict.").3
Putting aside the mandate rule and Smith's procedural default, Smith's challenge to the sufficiency of the evidence supporting the conspiracy conviction is unavailing on the merits. Smith contends that the evidence proves nothing more than a seller-buyer relationship between him and his buyers. As the government has demonstrated, however, the evidence proves that Smith shared an interest with his buyers in furthering resales, which is sufficient to support the conspiracy conviction. See Gov't Resp. at 20-33 (ECF No. 6) (discussing intercepted wire communications and physical surveillance showing an ongoing relationship between Smith and his buyer-distributors, including the use of coded language, sales on credit, assistance inpreparing drugs, and discussions about lower-level personnel); see also United States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009) ().
Smith claims that the government introduced perjured testimony in violation of his due process rights. Due process is violated when the government "knowingly uses false evidence, including false testimony, to obtain a tainted conviction." Napue v. People of State of Illinois, 360 U.S. 264, 269 (1959). Smith did not raise this claim on appeal. The government has not raised the procedural default, however, so I address the merits of the claim.
The testimony at issue was given by Officer David Rivera, who arrested one of Smith's co-defendants, Tyrell Gary, following a traffic stop. See Tr. Transcript at Vol. III, 572-80. Prior to the stop,...
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