Smith v. United States
| Decision Date | 23 September 2011 |
| Docket Number | Case No. 8:07-cr-176-T-17MAP,Case No. 8:10-cv-190-T-17MAP |
| Parties | ANTHONY SMITH, v. UNITED STATES OF AMERICA. |
| Court | U.S. District Court — Middle District of Florida |
This cause if before the Court on Anthony Smith's 28 U.S.C. § 2255. Smith is proceeding on his fourth amended motion to vacate (hereinafter "motion" or "motion to vacate)." (Doc. CV-28). A review of the record demonstrates that, for the following reason, the motion to vacate must be denied.
Smith attacks the legality of his sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), claiming that he is "actually innocent" of the 18 U.S.C. § 924(e) enhancement because two of his predicate prior convictions for escape no longer qualify as "violent felonies" under the statute; that his lawyer was ineffective for failing to argue "actual innocense" to the sentencing court; that his Fifth and Eighth Amendment rights were violated because his sentence constituted a statutory error and was excessive; and that the government failed to show that one of the burglaries used to qualify him under the ACCA was committed on a different occasion than what was in the charging instrument (Doc.CR-18).
In 2007, Smith was charged in a five count Indictment with being a convicted Felonin Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One); Possession with Intent to Distribute and Distribution of Heroin, in violation of 21 U.S.C. § 841(a)(1) (Counts Two through Four); and Possession with Intent to Distribute and Distribution of Cocaine and Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) (Count Five). (Doc. CR-13). On April 9, 2009, Smith entered a guilty plea, pursuant to a plea agreement, to being a Felon in Possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
On April 23, 2009, United States District Court Judge Elizabeth A. Kovachevich accepted Smith's guilty plea and adjudicated him guilty. The Presentence Investigation Report ("PSR") determined that Smith qualified for the enhanced penalty provisions of 18 U.S.C. § 924(e), commonly referred to as the "Armed Career Criminal Act" or "ACCA" (PSR ¶ 37), which requires that a defendant have three prior convictions for "violent felonies" or "serious drug offense." The United States Probation Office concluded that Smith had "several qualifying offenses of crimes of violence[.]" (PSR ¶ 37-38). Those prior convictions included a 1982 conviction for Escape, Dade County Case No. 82-16523 (PSR ¶ 45); a 1987 conviction for two counts of Burglary, Dade County Case No. 87-17167B (PSR ¶ 55); a 1991 conviction for Escape, Dade County Case No. 89-4700CFAWS (PSR ¶ 57); and a 1997 conviction for Burglary of an Occupied Dwelling, Dade County Case No. F97-27338 (PSR ¶ 62). The PSR thus calculated Smith's enhanced offense level at 32 (PSR ¶ 41). The PSR described Smith's extensive criminal history (PSR ¶ ¶ 42-72) and calculated a criminal history category of VI (PSR ¶ 75). His presumptive guideline range was 210-262 months' imprisonment (PSR ¶ 132).
At sentencing, Smith acknowledged the factual accuracy of the PSR. (Doc. CR-87at 4-5). Smith's only objection to the PSR was to ¶ 61, a prior conviction for possession of cocaine, which he withdrew at sentencing. (Doc. CR-87 at 4-5.) After considering the 18 U.S.C. § 3553(a) factors, this Court sentenced Smith to 210 months' imprisonment. (Id. at 13, Doc. CR-79, Doc. CR-84). Smith did not appeal.
Subsequently, Smith filed a timely 28 U.S.C. §2255 motion.
Smith argues that, pursuant to Begay v. United States, 553 U.S. 137 (2008), Chambers v. United States, 129, U.S. 687 (2009), and Johnson v. United States, 130 S. Ct. 1265 (2010), he is "actually innocent of the ACCA[.];" that his lawyer was ineffective for not arguing to the sentencing court that he was actually innocent because his prior offenses of Escape and Burglary of an Unoccupied Dwelling are no longer violent felonies; that his Fifth and Eighth Amendment rights were violated, and that the government failed to show that one of the burglaries used to qualify him for the ACCA was committed on different occasions from what was charged in the charging instrument.
Smith's claims, which are grounded in the Fifth Amendment (due process), the Sixth Amendment (), and the Eighth Amendment (), are cognizable under 28 U.S.C. § 2255. See, e.g., Lynn v. United States, 365 F.3d 1225, 1234 n.17 (11th Cir. 2004). All of his claims are expressly premised on the idea that Smith is not an armed career criminal. As is discussion below, however, Smith has at least three qualifying predicate convictions and was properly sentenced as an armed career criminal.
Ordinarily, claims that previously were available yet not raised in a prior proceeding are procedurally defaulted and barred from consideration on collateral review. Bousley v. United States, 523 U.S. 614, 622-24 (1998). A defendant must assert a claim at trial and on direct appeal or the claim will be subject to the procedural default rule. Massaro v. United States, 538 U.S. 500, 504 (2003); Murray v. Carrier, 477 U.S. 478, 490-92 (1986). Smith did not argue either at sentencing or on direct appeal that any of his prior convictions failed to qualify as violent felonies for purposes of the ACCA. In fact, during the sentencing hearing, Smith's counsel advised this Court that there were no objections to the predicate offenses, that he had reviewed the predicate offenses with probation and Mr. Smith, and that "they appeared to be in order for the application of the minimum statutory penalty of 15 years." (Doc. CR-87 at 7). Accordingly, Smith has procedurally defaulted his current challenge to those convictions.
To overcome the procedural default, Smith must demonstrate cause for his failure to raise the claim earlier and actual prejudice resulting from the alleged error. See United States v. Frady, 456 U.S. 152, 170 (1982). The "cause and prejudice" standard requires Smith to show not only that "some objective factor external to the defense" impeded his efforts to raise the issue earlier, Coleman v. Thompson, 501 U.S. 722, 753 (1991), but also that the error he alleges "worked to his actual and substantial disadvantage, infecting his entire trial with error." Frady, 456 U.S. at 170 (emphasis in original). If Smith cannot show both cause for his procedural default and prejudice, this Court should not consider his challenge to his sentence unless he demonstrates "actual innocence." See Bousley, 523 U.S. at 620-24.
As cause to excuse his procedural default, Smith asserts that his attorney rendered ineffective assistance by failing to challenge the designation of his prior convictions as violent felonies. To show that he suffered constitutionally ineffective assistance of counsel, Smith must allege and prove that his counsel's deficient performance worked to his actual and substantial disadvantage. Reece v. United States, 119 F.3d 1462, 1465-68 (11th Cir. 1997). He must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984).
"Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. at 689 (internal citations omitted). To prove incompetence, "[a] petitioner must identify specific acts or omissions that were not the result of reasonable professional judgment, and a court should deem these acts or omissions deficient only if they 'were outside the wide range of professionally competent assistance.'" Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting Strickland, 466 U.S. at 690). Because of the "strong presumption in favor of competence," a petitioner seeking to prove a Sixth Amendment violation "must establish that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc).
In this case, Smith contends that his counsel was ineffective because he failed to assert the argument that the Supreme Court ultimately adopted in Begay and subsequentcases. An attorney, however, is not constitutionally ineffective for failing to assert an argument that binding Circuit Court precedent foreclosed at that time. As Judge Carnes explained in his concurring opinion to the order denying rehearing en banc in United States v. Ardley, 273 F.3d 991, 993-94 (11th Cir. 2001):
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