United States v. Smiley

• Decision Date: 04 August 2021
• Docket Number: 1:09-cr-082,1:21-cv-459
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. TERRANCE SMILEY, Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, Plaintiff, v. TERRANCE SMILEY, Defendant.

Nos. 1:09-cr-082, 1:21-cv-459

United States District Court, S.D. Ohio, Western Division, Cincinnati

August 4, 2021

Susan J. Dlott, District Judge.

REPORT AND RECOMMENDATIONS

Michael R. Merz, United States Magistrate Judge.

This criminal case is before the Court on Defendant's Motion “to Add to 2255 Case 1:18-cv-01155 Do [sic] to Reasons Stated Below” (ECF No. 112). The case to which Defendant refers was No. 1:18-cv-01155 on the docket of The Honorable David A. Faber of the United States District Court for the Southern District of West Virginia at Bluefield. Defendant filed in that Court A habeas corpus petition under 28 U.S.C. § 2241.

On April 14, 2021, Magistrate Judge Dwayne Tinsley of the West Virginia court recommended that Smiley's Petition be denied but that his “claim concerning the application of U.S.S.G. § 5G1.3(b) as addressed in ECF Nos. 15 and 18 under 28 U.S.C. § 2255” be transferred to this Court. District Judge Faber adopted that recommendation and transferred the § 2255 claim to this Court on July 9 2021 (ECF No. 21). When received by this Court, the case was re-numbered 1:21-cv-459 which has now been consolidated with the above-numbered criminal case (Consolidation Order, ECF No. 114).

The transferred § 2255 Motion is before this Court for initial screening under Rule 4 of the Rules Governing § 2255 Proceedings.

Defendant Smiley was indicted in this Court on June 17, 2009, charged in nine counts with various federal drug trafficking offenses (Indictment, ECF No. 2). On August 27, 2010, he entered into a Plea Agreement with the United States in which he agreed to plead guilty to Count One which charges him with conspiring to possess with intent to distribute fifty grams or more of cocaine base (crack cocaine) and 500 grams or more of cocaine (ECF No. 45, ¶ 1). The plea was to be pursuant to Fed R. Crim. P. 11(c)(1)(C) with an agreed sentence of 180 months. Id. at ¶ 3. In the Plea Agreement Smiley agreed to waive his right to appeal unless the sentence exceeded the statutory maximum and “not to contest the sentence in any post conviction proceeding including but not limited to a proceeding under 28 U.S.C. § 2255.” Id. at ¶ 16.

On June 2, 2011, Smiley appeared before Chief Judge Dlott and was sentenced as agreed to 180 months imprisonment (Minutes, ECF No. 77; Judgment, ECF No. 78). Nothing further happened in the Ohio case until Magistrate Judge Litkovitz appointed Smiley counsel under the First Step Act in 2019 (ECF No. 90) and then in 2020 for a compassionate release motion (ECF No. 94).^[1]

Smiley filed his Petition under 28 U.S.C. § 2241 in West Virginia on July 18, 2018 (ECF No. 1 in No. 1:21-cv-459; hereinafter the “§ 2241 Case”). That was the proper venue for an action under § 2241 because Smiley was confined at FCI McDowell. Id. at PageID 4.^[2] In recommending a disposition of Smiley's petition, Magistrate Judge Tinsley noted that Smiley had added a claim

that the Ohio federal court should have applied U.S.S.G. § 5G1.3(b) at his sentencing, thereby adjusting his federal sentence to account for the period of imprisonment he had already served in state custody (although it is unclear to the undersigned whether his state and federal convictions arose out of the same criminal conduct and, thus, whether § 5G1.3(b) is even applicable to his case). Thus, his replies request to be resentenced in accordance with § 5G1.3(b). (ECF No. 15 at 3; ECF No. 18).

(Proposed Findings, § 2241 Case, ECF No. 19, PageID 135). Because in this added claim Smiley was challenging the validity of his sentence, rather than its manner of execution, the West Virginia court had no jurisdiction to consider that claim under § 2241. Id. Rather the claim was required to be transferred to this Court for consideration under 28 U.S.C. § 2255. Id. at PageID 136. Smiley made no objection to these Proposed Findings and in particular to re-characterization of his Sentencing Guidelines claim as a § 2255 motion. District Judge Faber therefore adopted the Proposed Findings and transferred the Sentencing Guidelines claim to this Court as a § 2255 motion (§ 2241 Case, ECF Nos. 20 and 21).

Rule 4(b) of the Rules Governing § 2255 Proceedings provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States to file an answer, motion, or other response within a fixed time, or take other action the judge may order.

Having considered the § 2255 motion, the Magistrate Judge recommends it be dismissed with prejudice for two reasons:

First of all, as noted above Smiley expressly waived his right to collaterally attack the sentence, including by filing under 28 U.S.C. §2255 (ECF No. 45, ¶ 16). A defendant who has knowingly, intelligently, and voluntarily agreed not to contest his sentence in any post-conviction proceeding has waived the right to file a § 2255 motion. Davila v. United States, 258 F.3d 448, 451 (6^th Cir. 2001). The enforceability of a waiver of appeal stands or falls with the validity of the plea agreement as a whole. United States v. Ataya, 869 F.3d 401, 402 (6^th Cir. 2017). Smiley has never contested the validity of the Plea Agreement or his plea of guilty pursuant to that Agreement. He has therefore waived the right to have his Sentencing Guidelines claim considered under § 2255.

Second, even if Smiley had not waived his right to file a § 2255 motion, it is barred by the statute of limitations. 28 U.S.C. § 2255(f) provides:

A one-year statute of limitations shall apply to a motion under this section. The limitations period shall run from 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 government 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.

The judgment of conviction in this case became final on June 24 2011, fourteen days after judgment was entered. Fed. R. App. P. 4(b)(1)(A)(i). Smiley did not make his Sentencing Guidelines claim in the §...