Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

RICHARD M. SMITH )

)

)

)

v. ) CASE NO. 2:23-CV-00745-RAH

)

UNITED STATES OF AMERICA )

)

MEMORANDUM OPINION AND ORDER

Pending before the Court is Richard M. Smith’s Motion to Vacate under 28

U.S.C. § 2255 which collaterally attacks his sentence in United States v. Smith, No.

2:19-cr-00122-RAH-JTA (M.D. Ala. Feb. 3, 2022). The Motion will be denied.

BACKGROUND

On March 12, 2019, Smith was indicted on four counts—conspiracy to

distribute and possess with the intent to distribute a controlled substance (cocaine

powder), possession with the intent to distribute a controlled substance (cocaine

powder), possession of a firearm during and in relation to a drug-trafficking crime,

and a money-laundering conspiracy. Smith’s wife was also charged in the

conspiracy. A superseding indictment added a co-defendant (Ronnie White) and an

additional charge against Smith for the use of a communication facility to further the

conspiracy.

Smith and his wife proceeded to trial in June 2021. The other co-defendant

pled guilty and testified against Smith. The jury returned a guilty verdict against

Smith on four counts, and a not guilty verdict on the money laundering conspiracy

count.

During his initial sentencing on December 7, 2021, Smith submitted a

handwritten motion to dismiss the indictment and discharged his retained counsel,

Preston Presley and Wesley Pitters, for claimed performance issues. The sentencing

was thus continued to a later date so that Smith could obtain new counsel and review

the presentence report. Smith retained new counsel and his sentencing proceeded on

February 2, 2022. He received a total sentence of 145 months, which included an

85-month sentence on the conspiracy and drug counts plus an additional 60 months

on the firearm count.

Smith appealed to the Eleventh Circuit, focusing only on his pre-trial

suppression motion which had been denied. Smith did not raise any claimed error

during the trial or sentencing. On December 27, 2022, the Eleventh Circuit affirmed

this Court’s denial of Smith’s suppression motion, finding that “the officer had

sufficient evidence supporting a reasonable suspicion that Smith was transporting

drugs to a dealer in the area, warranting the extension of the traffic stop and detention

of Smith.” United States v. Smith, No. 22-10489, 2022 WL 17958923, at *1 (11th

Cir. Dec. 27, 2022) (per curiam). Smith’s conviction was therefore affirmed.

On December 27, 2023, Smith filed the instant Motion to Vacate pursuant to

28 U.S.C. § 2255, in which he asserts six instances of alleged ineffective assistance

of counsel (1) “by failing to file a Motion in Limine or object to an unlawful wiretap

extension authorization, which included phone calls from Petitioner”; (2) “failing to

object to prejudicial testimony that was introduced at trial” from two witnesses—

Patricia Hill and Karl Oroz; (3) “by failing to adequately investigate”; (4) “by failing

to object to jurors with memory issues and sleeping during trial”; (5) “by failing to

adequately consult with Petitioner regarding his trial and sentencing”; and (6) by

failing “to argue any of the issues presented in this Petition related to Petitioner’s

trial and sentencing.”

The Government argues that Smith’s ineffectiveness claims are without merit.

LEGAL STANDARD

Under § 2255, “[a] prisoner in custody under sentence of a court established

by Act of Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution . . . may move the court which

imposed the sentence to vacate, set aside, or correct the sentence.” 28 U.S.C.

§ 2255(a). Because collateral review is not a substitute for direct appeal, the grounds

for collateral attack on final judgments under § 2255 are extremely limited. See

United States v. Frady, 456 U.S. 152, 165 (1982). A prisoner is entitled to relief

under § 2255 if the court imposed a sentence that (1) violated the Constitution or

laws of the United States; (2) exceeded its jurisdiction; (3) exceeded the maximum

authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C.

§ 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).

“[R]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional

rights and for that narrow compass of other injury that could not have been raised in

direct appeal and would, if condoned, result in a complete miscarriage of justice.”

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (cleaned

up).

The law is well established that a district court need not reconsider issues

raised in a § 2255 motion which have been resolved on direct appeal. Stoufflet v.

United States, 757 F.3d 1236, 1239 (11th Cir. 2014); Rozier v. United States, 701

F.3d 681, 684 (11th Cir. 2012). Once a matter has been decided adversely to a

defendant on direct appeal, it cannot be re-litigated in a collateral attack under

§ 2255. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000). Broad

discretion is afforded to a court’s determination of whether a particular claim has

been previously raised. See Sanders v. United States, 373 U.S. 1, 16 (1963)

(“[I]dentical grounds may often be proved by different factual allegations . . . [or]

supported by different legal arguments . . . or be couched in different language . . .

or vary in immaterial respects.” (citations omitted)).

Because a motion to vacate under § 2255 is not a substitute for direct appeal,

issues which could have been raised on direct appeal are generally not actionable in

a § 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234;

McKay, 657 F.3d at1195. An issue is “‘available’ on direct appeal when its merits

can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14

(quoting Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994)). Absent a

showing that the ground of error was unavailable on direct appeal, a court may not

consider the ground in a § 2255 motion unless the defendant establishes one of two

exceptions. As to the first, the defendant must show (1) cause for not raising the

ground on direct appeal and (2) actual prejudice resulting from the alleged error. Id.

at 1234. Alternatively, a court may consider the ground if the defendant shows that

he is “actually innocent.” Id.

To show cause for procedural default, a defendant must show that “some

objective factor external to the defense prevented [him] or his counsel from raising

his claims on direct appeal and that this factor cannot be fairly attributable to [the

defendant’s] own conduct.” Id. at 1235. A meritorious claim of ineffective assistance

of counsel can constitute cause. See Nyhuis, 211 F.3d at 1344.

Ineffective assistance of counsel claims are generally not cognizable on direct

appeal and are properly raised by a § 2255 motion regardless of whether they could

have been brought on direct appeal. Massaro v. United States, 538 U.S. 500, 503

(2003); see also United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012). In order

to prevail on a constitutional claim of ineffective assistance of counsel, a defendant

must demonstrate both that counsel’s performance was below an objective and

reasonable professional norm and that he was prejudiced by this inadequacy.

Strickland v. Washington, 466 U.S. 668, 686 (1984); Darden v. United States, 708

F.3d 1225, 1228 (11th Cir. 2013). In applying Strickland, a court may dispose of an

ineffective assistance claim if a defendant fails to carry his burden on either of the

two prongs. Strickland, 466 U.S. at 697; Brown v. United States, 720 F.3d 1316,

1326 (11th Cir. 2013).

In determining whether counsel’s conduct was deficient, this court must, with

much deference, consider “whether counsel’s assistance was reasonable considering

all the circumstances.” Strickland, 466 U.S. at 688; see also Dingle v. Sec’y for Dep’t

of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Reviewing courts are to examine

counsel’s performance in a highly deferential manner and “must indulge a strong

presumption that counsel’s conduct [fell] within the wide range of reasonable

professional assistance.” Hammond v. Hall, 586 F.3d 1289, 1324 (11th Cir. 2009)

(quoting Strickland, 466 U.S. at 689). Counsel’s performance must be evaluated

with a high degree of deference and without the distorting effects of hindsight.

Strickland, 466 U.S. at 689. To show counsel’s performance was unreasonable, a

defendant must establish that “no competent counsel would have taken the action

that his counsel did take.” Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir.

2008) (citations omitted). “[T]he fact that a particular defense ultimately proved to

be unsuccessful [does not] demonstrate ineffectiveness.” Chandler v. United States,

218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). When reviewing the performance

of an experienced trial counsel, the presumption that counsel’s conduct was

reasonable is even stronger, because “[e]xperience is due some respect. Id. at 1316

& n.18.

To establish ineffective assistance, Defendant must provide factual support

for his contentions regarding counsel’s performance. Smith v. White, 815 F.2d 1401,

1406 (11th Cir. 1987). Bare, conclusory allegations of ineffective assistance are

insufficient to satisfy the Strickland test. See Boyd v. Comm’r, Ala. Dep’t of Corr.,

697 F.3d 1320, 1333 (11th Cir. 2012).

With regard to the prejudice requirement, a defendant must establish that, but

for counsel’s deficient performance, the outcome of the proceeding would have been

different. Strickland, 466 U.S. at 694. “The likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).

For a court to focus merely on “outcome determination,” however, is insufficient;

“[t]o set aside a conviction or sentence solely because the outcome would have been

different but for counsel’s error may grant the defendant a windfall to which the law

does not entitle him.” Lockhart v. Fretwell, 506 U.S. 364, 369–70 (1993); Allen v.

Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 754 (11th Cir. 2010). A defendant therefore

must establish “that counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Lockhart, 506 U.S. at 369 (quoting

Strickland, 466 U.S. at 687).

Finally, the Eleventh Circuit has recognized that given the principles and

presumptions set forth above, “the cases in which habeas petitioners can properly

prevail . . . are few and far between.” Chandler, 218 F.3d at 1313 (quoting Waters

v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)). This is because the test

is not what the best lawyers would have done or even what most good lawyers would

have done, but rather whether some reasonable lawyer could have acted in the

circumstances as defense counsel acted. Dingle, 480 F.3d at 1099; Williamson v.

Moore, 221 F.3d 1177, 1180 (11th Cir. 2000). “Even if counsel’s decision appears

to have been unwise in retrospect, the decision will be held to have been ineffective

assistance only if it was ‘so patently unreasonable that no competent attorney would

have chosen it.’” Dingle, 480 F.3d at 1099 (quoting Adams v. Wainwright, 709 F.2d

1443, 1445 (11th Cir. 1983)). A defendant’s belief that a certain course of action that

counsel failed to take might have helped his case does not direct a finding that

counsel was constitutionally ineffective under the standards set forth above.

An evidentiary hearing is unnecessary when “the motion and files and records

conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b);

Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); Gordon, 518 F.3d at

1301. Not every claim of ineffective assistance of counsel warrants an evidentiary

hearing. Gordon, 518 F.3d at 1301. To be entitled to a hearing, a defendant must

allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United

States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous

claims, conclusory allegations unsupported by specifics, or contentions that are

wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d

1210, 1216 (11th Cir. 2014) (explaining that “a district court need not hold a hearing

if the allegations [in a § 2255 motion] are ‘patently frivolous,’ ‘based upon

unsupported generalizations,’ or ‘affirmatively contradicted by the record’” (quoting

Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989)). Even affidavits that

amount to nothing more than conclusory allegations do not warrant a hearing. Lynn,

365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by

the court without a hearing.

DISCUSSION

In his Petition, Smith points to six decisions taken by his trial counsel that

allegedly rendered their assistance ineffective. These will be addressed in turn, and

none of them warrants relief.

* * * * *

In ground one, Smith argues that his trial counsel was ineffective “by failing

to file a Motion in Limine or object to an unlawful wiretap extension authorization,

which included phone calls from Petitioner.” (Doc. 7-1 at 5.)1 In particular, Smith

argues that “probable cause did not exist to warrant the initial wiretap or extension”

and that trial counsel “failed to make reasonable efforts to exclude this evidence,

which resulted in deficient performance and resulted in prejudice against Petitioner

1 Unless otherwise noted, the docket citations in this Order correspond to Case No. 2:23-cv-745.

by allowing such evidence to be introduced to the jury.” (Id. at 7.)

In response, the Government states that the wiretaps were authorized by a

federal judge based on a probable cause affidavit, that the order was based on a

wiretap of someone else’s number, that Smith lacks standing because it was a

wiretap of someone else’s number, and that Smith has not shown how such a motion

or objection would have been successful.

The Court agrees. Smith has not shown how any such motion would have been

successful. In fact, the wiretap authorization was issued by a federal judge as it

concerned co-defendant Ronnie White’s phone number, and Ronnie White later

pleaded guilty to a charge of drug distribution. Smith’s involvement became known

because of that wiretap. Smith has not shown the initial authorization as to Mr. White

was defective or lacking in any format or substance. And he certainly has not shown

how his retained counsel could have objected, let alone even been aware of, an

ongoing application for a wiretap authorization given the confidentiality of those

proceedings prior to Smith’s subsequent traffic stop and arrest.

Finally, Smith, through counsel, did file a motion to suppress the evidence

gathered at the traffic stop (Cr. No. 35), but that motion was denied by the magistrate

judge (see doc. 137), affirmed by this Court over Smith’s objection (see doc. 151),

and affirmed by the Eleventh Circuit on appeal (see doc. 295), as all three courts

concluded there was sufficient reasonable suspicion to investigate drug trafficking

based on the totality of the circumstances, which included the wiretaps and the

events during the traffic stop itself. There is simply no evidence or grounds to

support Smith’s claims here, and he is therefore not entitled to relief on this claim.

* * * * *

In Ground Two, Smith argues that his trial counsel was ineffective for “failing

to object to prejudicial testimony that was introduced at trial” from two witnesses—

Patricia Hill and Karl Oroz. (Doc. 7-1 at 7-8.) According to Smith, his attorneys

should have but did not object to four questions the prosecutor asked of Hill. The

testimony centered on the point that persons involved in illegal drug distribution,

i.e., drug dealers, often carried loaded guns. Smith claims this testimony was

unnecessary and prejudicial because it called him a drug dealer before the jury and

because Smith was in the military and held a valid pistol permit. In a similar fashion,

Smith argues that his counsel should have objected to the testimony from Oroz, a

special agent who investigated financial crimes with the I.R.S. and U.S. Treasury,

who testified that it could be inferred that certain cash deposits were related to drug

proceeds. (Id. at 8-9.) According to Smith, Oroz’s testimony was prejudicial and

speculative.

Smith’s claims are without merit. This type of testimony is generally

admissible because it provides probative contextual evidence as to why Smith likely

possessed the firearm. The testimony showed that the firearm was not there by

chance and could possibly facilitate drug trafficking. And it is also probative

contextual evidence of money laundering from illicit drug sales in that large cash

deposits are indicative of the drug trade and were made in such a way as to not trigger

federal reporting.

The Eleventh Circuit has repeatedly upheld the admissibility of law

enforcement testimony on the relationship between guns, large cash deposits, and

drug distribution. Based on their training and experience, certain witnesses, like

forensic accountants and law enforcement officers, have knowledge not within the

scope of knowledge of the average lay person. The Eleventh Circuit has held that a

“witness is permitted to deliver a lay opinion testimony based on his professional

experiences.” United States v. McLellan, 958 F.3d 1110, 1114 (11th Cir. 2020)

(quoting United States v. Williams, 865 F.3d 1328, 1341 (11th Cir. 2017)). This

principle allows law enforcement officers to testify to the relationship between drugs

and guns and likewise allows forensic accountants to testify to the relationship

between drugs and large sums of cash. United States v. Carillo-Ayala, 713 F.3d 82,

92 (11th Cir. 2013); United States v. Pham, 463 F.3d 1239, 1246 (11th Cir. 2006);

Williams, 865 F.3d at 1342; see also Tampa Bay Shipbuilding & Repair Co. v. Cedar

Shipping Co., Ltd., 320 F.3d 1213, 1223 (11th Cir. 2003) (holding law enforcement

witnesses are permitted to offer lay testimony “based upon their particularized

knowledge garnered from years of experience within the field”); United States v.

Stahlman, 934 F.3d 1199, 1223 (11th Cir. 2019) (permitting an FBI agent to offer

lay testimony about the nature of an online classified ad in a sex-crimes case); United

States v. Tinoco, 304 F.3d 1088, 1119 (11th Cir. 2002) (permitting an officer to offer

his characterization of a vessel as a “go-fast” boat); United States v. Novaton, 271

F.3d 968, 1008–09 (11th Cir. 2001) (permitting officers to offer lay testimony about

the meaning of coded terms in a drug-trafficking case); cf. United States v. Garcia,

447 F.3d 1327, 1334–35 (11th Cir. 2006) (district court did not err in permitting

expert testimony from law enforcement about the operations of narcotics dealers or

the interpretation of drug codes and jargon under Rule 702). Applying this principle,

the Eleventh Circuit has noted the admissibility of testimony concerning the

connection between drug distribution and firearms over objections of relevance,

prejudice, and speculation. And that same principle equally applies as to the

connection between drug distribution and money laundering.

In addition, even if the testimony was more prejudicial than probative, any

error was harmless because Smith had ample opportunity to, and did, address the

issue of his possession of a firearm and large cash deposits with the jury. On the

firearm, he testified that his possession of the firearm was related to his military

service, and as to the cash deposits, he tied them to his wife’s restaurant business. If

the jury had accepted Smith’s version of events that Hill had testified that drug

dealers often use firearms would not have swayed their verdict. Thus, Hill’s

testimony, designed to aid the jury’s understanding of the drug business, was

permissible, and Smith’s attorney did not provide ineffective assistance by failing to

object. And as to Oroz’s testimony, Smith certainly was successful in rebutting it, as

the jury acquitted him of the money-laundering charge. Given the acquittal, Smith

has not shown prejudice and Smith’s counsel certainly was not ineffective.

* * * * *

In his third ground, Smith argues that counsel was ineffective “by failing to

adequately investigate.” (Doc. 7-1 at 9.) In particular, Smith states that counsel “did

not adequately review the dash cam footage related to Petitioner’s arrest” because

the magistrate judge in her recommendation stated that the pat down was not within

camera range. According to Smith, this was incorrect because the footage actually

showed that the search was within the camera range and therefore his attorneys

should have brought this to the judge’s attention and should have shown this video

at trial since it supported Smith’s version of events. (Id.)

The Government disputes Smith’s assertion. It states that there is no other

dash camera footage, let alone footage that support’s Smith position that drugs were

not found on his person.

Smith’s claim largely focuses on the magistrate judge’s actions in denying

Smith’s suppression motion. Smith asserts that the magistrate judge’s order

contradicts the video evidence, and therefore Smith’s counsel should have brought

this to the judge’s attention and should have shown it at trial. Smith’s argument is

wrong. The magistrate judge correctly described the contents of the video,

referencing it in the suppression order and broadly discussing what it showed. That

discussion included, contrary to Smith’s assertion, that the pat down was within

camera range.

Further, the Court notes that Smith’s counsel objected to the Magistrate

Judge’s suppression order (see Cr. No. 137), which triggered this Court’s review.

This Court also reviewed the video and notes that the video not only shows Smith’s

arrest but also the pat down search including the discovery of illegal drugs on

Smith’s person.

To the extent Smith argues this video should have been shown to the jury, the

video was shown to the jury in substantial part, including the pat down and arrest.

(Doc. 288, at 88, 90–112.) It is true that the entirety of that video was not shown to

the jury. However, the video shown depicted the discovery of the drugs on Smith’s

person.

Smith does not explain which parts of the video should have been shown to

the jury and what it would have shown. In this collateral proceeding, Smith must

show the exact manner in which his legal counsel was inadequate at trial with respect

to the video and how the video portions that were not shown would have resulted in

a different outcome. Smith must provide evidence, not mere conclusory allegations,

that counsel overlooked exculpatory information. Smith does not meet his burden

here. The video was shown to the jury, and the jury was permitted to draw whatever

inferences from it that could be drawn. Smith has not shown how the result would

have been different here or how his counsel acted unreasonably as it concerns the

video. And to the extent Smith claims there is some other video in existence that

would have shown something different, this assertion is vague, conclusory, and

completely lacking in evidentiary support as to both its existence and what it would

show. This claim is without merit.

* * * * *

In his fourth ground, Smith argues his counsel was ineffective “by failing to

object to jurors with memory issues and sleeping during trial.” (Doc. 7-1 at 10.) In

particular, Smith states there was one juror who had memory issues and another who

was asleep during trial, that he pointed out the sleeping juror to his attorney, and that

his attorney never objected. This, according to Smith, prejudiced him because these

jurors “were not wholly aware of the evidence presented in this case.” (Id.)

As the Government notes, Smith’s assertion lacks any basis. Smith does not

identify the jurors or give any description of the jurors’ identities, or at what point

during the trial that Smith claims the juror was sleeping.

It is true that a sleeping juror may prejudice a criminal defendant by denying

that defendant a fair trial. See United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.

2000); United States v. Barrett, 703 F.2d 1076, 1082–83 (9th Cir. 1982); Hammonds

v. Allen, 849 F. Supp. 2d 1262, 1311 (M.D. Ala. 2012). But see Ciaprazi v.

Senkowski, 151 F. App’x 62, 63–64 (2d Cir. 2005) (holding that trial counsel’s

decision not to object to a possibly sleeping juror may have been a reasonable

strategic decision). In the Eleventh Circuit, “defense counsel [has] a duty to call a

juror’s inattentiveness to the court’s attention when first noticed.” United States v.

Curry, 471 F.2d 419, 422 (5th Cir. 1973) (citation omitted).2 But Smith utterly fails

to prove this issue from the record,3 and fails to show how he was prejudiced by his

counsel’s failure to timely object to the allegedly sleeping jurors. His argument and

the record lack any particulars as to the identity of the jurors, the stage of the trial

during which the jurors were asleep, what testimony and evidence the jurors would

have missed, the duration of the jurors’ sleep.

In United States v. Mathis, 554 F. App’x 856 (11th Cir. Feb. 6, 2014)(per

curiam), the Eleventh Circuit declined to address the defendants’ arguments that

their attorneys were ineffective because the Eleventh Circuit found that the

defendants “failed to develop a record that would allow [it] to evaluate [the

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh

Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981.

3 During trials, including this one, the Court regularly scans the jury to determine their

attentiveness. Here, the Court did not observe any sleeping jurors.

defendants’] arguments that their attorneys should have made a ‘formal motion to

remove or object . . . to the presence of the sleeping juror.’” Id. at 856 (quoting

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002)). Smith likewise

failed to develop a record sufficient for this Court to evaluate his claim.

Finally, on this point, Smith has not shown how the outcome of the trial would

have been different. The evidence against Smith was overwhelming. The jury was

unanimous in its decision, and it considered all of the evidence since Smith was

acquitted of one count.

* * * * *

In his fifth ground, Smith argues that his counsel was ineffective “by failing

to adequately consult with Petitioner regarding his trial and sentencing.” (Doc. 7-1

at 10.) According to Smith, prior to the sentencing hearing, he and his family were

unable to get in touch with his retained counsel and that counsel had not reviewed

his sentencing report with him. Smith claims this was a deficient performance and

prejudiced him.

Smith’s argument is without merit. First, Smith fails to show what prejudice

or harm occurred as a result of this claimed lack of communication. Second, Smith’s

claim appears to be focused on his presentence report. At his sentencing on

December 7, 2021, when he was represented by Preston Pressly and Wesley Pitters,

Smith complained that his then-counsel failed to show him or consult with him about

the presentencing report to the level he thought appropriate. His then-counsel

disputed the assertion. Smith then terminated them on the spot. To afford Smith

sufficient time to retain new counsel, review the presentencing report, and lodge

whatever objections he deemed appropriate, his sentencing was continued to a later

date.

His sentencing was then reset to January 21, 2022, and then reset at Smith’s

request to February 2, 2022. In the interim, Smith retained new counsel, Anwar

Taylor. On Smith’s behalf, Mr. Taylor filed a sentencing memorandum and

requested a downward variance. In his sentencing memorandum, Mr. Taylor

advanced numerous objections and responses to the presentence report. And those

were all addressed at the sentencing.

Smith’s sentencing, with the assistance of Mr. Taylor, proceeded on February

2, 2022. There was extensive discussion about the evidence at trial and the

presentence report, and Smith gave an allocution. Unlike the first sentencing, Smith

voiced no objection or problems with his new counsel and made no complaint about

the lack of opportunity to speak with his new counsel about the presentence report.

Instead, to the extent Smith spoke, he insisted that the video did not show any drugs

being taken from him during the pat down search. Then, at the conclusion of the

sentencing, when asked whether there were any objections, Smith objected only to

the assessment of a fine.

Smith has not shown ineffective assistance from his legal counsel on this

issue. Nor has he shown prejudice. Assuming the truth of his statements about his

previous counsel, any concerns were addressed when Smith was allowed to retain

new counsel and his sentencing hearing was reset for a later date. As such, Smith

has not met his burden here.

* * * * *

In his sixth and final ground, Smith claims his appellate counsel “failed to

argue any of the issues presented in this Petition related to Petitioner’s trial and

sentencing, which constitutes a deficient performance that prejudiced Petitioner by

failing to preserve these issues during the appeals process and prohibiting Petitioner

from previously receiving relief.” (Doc. 7-1 at 12-13.) He further states that counsel

“abandoned the issue of the second pat down’s legality” and that counsel failed to

show that “Lieutenant Dunn’s testimony that he could smell cocaine was ‘incredible

as a matter of law.’” (Id. at 13.)

This argument is largely a rehash of the other arguments. And since none of

those support an ineffective assistance claim, they certainly do not support such a

claim on appeal. Thus, counsel cannot be deemed ineffective for failing to raise an

issue which has no merit. Indeed, it is professionally reasonable for a lawyer to fail

to pursue issues which have little or no chance of success, and a criminal defendant

is not prejudiced by counsel’s failure to pursue non-meritorious claims or those on

which they likely would not have prevailed.

Outside of that, Smith’s argument is far too vague to provide grounds for

relief. And to the extent he bases a claim on the credibility of law enforcement

officer’s testimony that he could smell cocaine, that was a credibility issue

considered by the jury, and it was within the province of the jury to determine the

weight to give that testimony. Issues that go to the credibility of the witnesses do not

support an ineffective assistance claim, especially in the context that Smith raises it

here. And to the extent this claim goes back to the traffic stop and search itself, it

was made the basis of Smith’s suppression motion which was filed by Smith’s

counsel, argued to the magistrate judge and this Court, ruled upon by the magistrate

judge and this Court, and then examined by the Eleventh Circuit on appeal. Smith

has raised no meritorious claim on this issue. At best, this is just another attempt to

directly attack the suppression issue, which is not appropriate for habeas relief.

EVIDENTIARY HEARING

Smith is not entitled to an evidentiary hearing because he has not alleged

specific facts that, if true, would entitle him to habeas relief. Allen v. Sec’y, Fla.

Dep’t of Corr., 611 F.3d 740, 763 (11th Cir. 2010) (“Having alleged no specific facts

that, if true, would entitle him to federal habeas relief, [Petitioner] is not entitled to

an evidentiary hearing.”).

CONCLUSION

For the foregoing reasons, it is ORDERED and ADJUDGED as follows:

1) Petitioner Richard M. Smith’s Motion to Vacate under 28 U.S.C. §

2255 (doc. 1) is DENIED;

2) To the extent Smith seeks a certificate of appealability, the request to

proceed on appeal is DENIED because Petitioner has failed to make a substantial

showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2); Slack v.

McDaniel, 529 U.S. 473, 483-85 (2000); and

3) The Clerk is directed to CLOSE this case and mail a copy of this Order

to Petitioner at the address of record.

DONE and ORDERED on this the 28th day of January 2026.

UNITED STATES DISTRICT JUDGE

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