United States v. Smith
| Decision Date | 18 August 2020 |
| Docket Number | Case No.: 2:11-cr-00442-GMN-GWF-2 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DEON FREDRICK SMITH, Defendant. |
| Court | U.S. District Court — District of Nevada |
Pending before the Court is Defendant Deon Fredrick Smith's ("Defendant's") Motion to Extend Time to File a 2255 Motion, (ECF No. 315). The Motion also requests that the Court appoint counsel for Defendant, (ECF No. 316). The Government filed a Response, (ECF No. 317), and Defendant filed both an Addendum, (ECF No. 318), and a Supplement, (ECF No. 319), to the Motion.
Also pending before the Court is the Motion to Vacate, Set Aside, or Correct Sentence (the "2255 Motion"), (ECF No. 336). The Government filed a Response, (ECF No. 339), and Defendant filed a Reply, (ECF No. 343).
Also pending before the Court is the Motion to Reduce and Correct Sentence, (ECF No. 328). The Motion also requests appointment of counsel, (ECF No. 329), and a new sentencing hearing, (ECF No. 330). The Government filed a Response, (ECF No. 331), and Defendant did not file a reply.
Also pending before the Court is the First Motion to Amend the 2255 Motion, (ECF No. 346). The Government filed a Response, (ECF No. 347), and Defendant did not file a reply.
Also pending before the Court is the Second Motion to Amend the 2255 Motion, (ECF No. 353). The Government filed a Response, (ECF No. 354), Defendant filed a Reply, (ECF No. 356), and CJA counsel filed a Supplemental Reply, (ECF No. 376).
For the reasons discussed below, the Court DENIES as moot the Motion to Extend Time to File a 2255 Motion. The Court DENIES Defendant's Motions for Appointment of Counsel. The Court DENIES the 2255 Motion. The Court DENIES the Second Motion to Amend the 2255 Motion. The Court GRANTS the First Motion to Amend the 2255 Motion. The Court DENIES the Motion to Reduce and Correct Sentence, Appoint Counsel, and for Sentencing Hearing.
On May 28, 2014, Defendant was convicted of: (1) criminal conspiracy in violation of 18 U.S.C. § 371; (2) armed bank robbery in violation of 18 U.S.C. § 2113(a), (d); (3) using and carrying a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(2); and (4) accessory after the fact in violation of 18 U.S.C. § 3. (See J., ECF No. 233); (see also Third Superseding Indictment, ECF No. 150). The Court sentenced Defendant to 60 months imprisonment on Count 1; 168 months imprisonment on Count 2, concurrent with Count 1; 84 months imprisonment on Count 3, consecutive to all other counts; and stayed sentencing as to Count 4. (Id.).
Defendant appealed. (Notice of Appeal, ECF No. 227). The Ninth Circuit affirmed Defendant's conviction in part and vacated the conviction in part, dismissing the accessory after the fact count without prejudice. See United States v. Smith, 650 F. App'x 458 (9th Cir. 2016).1 On January 5, 2017, this Court resentenced Smith. (Am. J., ECF No. 292). Defendant did not appeal the Amended Judgment. Rather, he filed a Motion to Appoint Counsel, (ECF No. 316), to help him file a 2255 Motion and a Motion to Extend Time, (ECF No. 315), to file a2255 Motion. After the Government responded, arguing that the Court did not have jurisdiction to grant Defendant's requests in the absence of a 2255 Motion, Defendant asked the Court to treat his previous Motions as a 2255 Motion in the event that the Court did not grant the requested extension and appointment. (See Resp., ECF No. 317); (Addendum and Supp., ECF Nos. 318-19).
On February 23, 2018, Defendant filed the instant 2255 Motion, which argues that the Court should vacate, set aside, or correct his sentence because the sentence is constitutionally invalid, and Defendant received ineffective assistance of counsel. (2255 Mot. at 2-3, ECF No. 336). Defendant has also filed several Motions for appointment of counsel, for hearings, and to amend the 2255 Motion. (See ECF Nos. 328-30, 346, 353).
Under 28 U.S.C. § 2255, a defendant may file a motion requesting the sentencing Court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: "(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack." Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). "[A] district court may deny a Section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989).
The Court begins its analysis by addressing the mootness of the Motion to Extend Time to File a 2255 Motion and the Motion for Appointment of Counsel to assist in preparing the 2255 Motion. The Court then addresses the substantive 2255 Motion. After addressing the2255 Motion, the Court considers whether to provide Defendant leave to amend. The Court concludes by addressing Defendant's Motion to Reduce and Correct Sentence, Appoint Counsel, and for Sentencing Hearing.
On November 1, 2017, Defendant filed the Motion to Extend Time and for Appointment of Counsel, (ECF No. 315-16). The Motion asks the Court to extend Defendant's deadline to file a 2255 Motion and to appoint an attorney to help him with the Motion. (Id.). On February 23, 2018, Defendant filed a 2255 Motion. (See 2255 Mot., ECF No. 336) (USCA Order, ECF No. 335) (directing the Court to regard ECF No. 336 as filed when postmarked). The Government's Response does not challenge the timeliness of Defendant's 2255 Motion; to the contrary, it argues that Defendant's 2255 Motion relates back to the Motion to Extend Time and Appoint Counsel because the arguments raised in the 2255 Motion are raised in the earlier filing. (Resp. 3:3-12, ECF No. 339). Accordingly, because the Government concedes that the Motion is timely and Defendant has already filed the 2255 Motion without the assistance of counsel, the Court DENIES as moot the Motion to Extend Time to File and Appoint Counsel.
Defendant's 2255 Motion presents two reasons for the Court to vacate, set aside, or correct Defendant's conviction. Defendant first argues that his conviction under 18 U.S.C. § 924(c) is unconstitutional in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Johnson v. United States, 576 U.S. 591 (2015). (2255 Mot. at 3, ECF No. 336). Defendant also argues that he received ineffective assistance of counsel on appeal because his attorney failed to raise appropriate evidentiary objections implicating his armed bank robbery conviction. (Id.). The Court finds neither argument persuasive.
Defendant argues the Court should vacate his conviction under 18 U.S.C. § 924(c) because the conviction is unconstitutional. (Id.). The Government argues that Defendant's conviction is valid because armed bank robbery is a valid predicate under 18 U.S.C. § 924(c). (Resp. 4:9-13, ECF No. 339). The Court agrees.
Section (c) of the Armed Career Criminal Act, 18 U.S.C. § 924(c), "imposes a mandatory consecutive term of imprisonment for using or carrying a firearm 'during and in relation to any crime of violence.'" United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (per curiam) (quoting 18 U.S.C. § 924(c)(1)(A)), cert. denied, 139 S. Ct. 203 (2018). The statute defines a "crime of violence" as a felony that either, "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(A)-(B). Subsection (A) is known as the "elements clause," and Subsection (B) the "residual clause." United States v. Davis, 139 S. Ct. 2319, 2324-25 (2019). Defendant argues that his conviction is invalid because convictions that rely on the residual clause are unconstitutional. (See 2255 Mot. at 3).
Defendant's conviction under 18 U.S.C. § 924(c) is valid because an armed bank robbery conviction qualifies as a predicate under the elements clause. Watson, 881 F.3d at 784-86. While the language of the residual clause is unconstitutionally vague, the same is not true of the elements clause. Compare Davis, 139 S. Ct. at 2336 (); with Watson, 88 F.3d at 786 (). Therefore, because Defendant's conviction under 18 U.S.C. § 924(c) falls within the statute's residual clause, the conviction is constitutionally valid. The Court now addresses Defendant's ineffective assistance argument.
Defendant argues that his attorney did not adequately contest the evidentiary basis of Defendant's armed bank robbery conviction. (2255 Mot. at 3). Defendant explains that the Government introduced evidence of his prior convictions at trial to prove guilt under the accessory after the fact Count. (Id.). He argues that because the Ninth Circuit reversed the Count, the introduction of his prior convictions was prejudicial. (Id.). He argues that counsel erred by failing to challenge the validity of the armed bank robbery conviction under Federal Rule of Evidence 404(b). (Id.). Defendant also argues in another filing that counsel should have objected to the testimony of a jailhouse informant because the Government did not obtain a warrant for the testimony. (See Mot. Appoint Counsel at 4, ECF No. 316).
The Government responds that the introduction of Defendant's prior...
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