Petition for Writ of Certiorari — Terrance Smith, Petitioner v. United States

APPENDICES

Appendix A: Decision of the Court of Appeals, United States v. Smith,

4th Cir. No. 17-7190, Doc. 19 (Mar. 15, 2018).. . . . . . . . . . . . . . . . . . . . . . . . 1a

Appendix B: Decision of the District Court, United States v. Smith,

E.D. Va. No. 2:02-cr-217, Doc. 458 (June 20, 2017). . . . . . . . . . . . . . . . . . . . 3a

Appendix C: Order of the Court of Appeals granting authorization pursuant

to 28 U.S.C. § 2244 to file second or successive § 2255 motion, United

States v. Smith, E.D. Va. No. 2:02-cr-217, Doc. 425 (June 27, 2016). . . . . . . 9a

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7190

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRANCE SMITH, a/k/a Ty,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Norfolk. Raymond A. Jackson, District Judge. (2:02-cr-00217-RAJ-5; 2:16-cv-00307RAJ)

Submitted: March 13, 2018

Decided: March 15, 2018

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Andrew Curtis Bosse,

Gregory David Stefan, Assistant United States Attorneys, John Farrell Butler, Joseph

Kosky, Norfolk, Virginia, Eric Matthew Hurt, Assistant United States Attorney, OFFICE

OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Pet. App. 1a

Appendix A

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PER CURIAM:

Terrance Smith seeks to appeal the district court’s order denying as untimely his

28 U.S.C. § 2255 (2012) motion. The order is not appealable unless a circuit justice or

judge issues a certificate of appealability.

28 U.S.C. § 2253(c)(1)(B) (2012).

A

certificate of appealability will not issue absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists would find that the district court’s assessment of the constitutional claims is

debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.

Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on

procedural grounds, the prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the motion states a debatable claim of the denial of a

constitutional right. Slack, 529 U.S. at 484-85.

We have independently reviewed the record and conclude that Smith has not made

the requisite showing. Accordingly, we deny a certificate of appealability and dismiss

the appeal. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

DISMISSED

Pet. App. 2a

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 1 of 6 PageID# 789

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

UNITED STATES OF AMERICA,

Respondent,

Civil No.:2:16cv307

V.

Crim. No.: 2:02cr217-5

TERRANCE SMITH,

Petitioner.

MEMORANDUM OPINION AND ORDER

I.

INTRODUCTION

Before the Court is Terrance Smith's ("Petitioner") Motion pursuant to Title 28, United

States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("2255 Motion").

Having thoroughly reviewed the Parties' filings in this case, this Court finds this matter is ripe

for judicial determination. For the reasons set forth below. Petitioner's 2255 motion is DENIED.

1.

PROCEDURAL HISTORY

On July 18,2003, a jury sitting in the Eastern Districtof Virginia returned a guilty verdict

against Petitioner on four counts. ECF No. 39. Count one charged Petitioner with Conspiracy to

Distribute and Possess with Intent to Distribute Cocaine, Cocaine Base and Heroin in violation

of Title 21 U.S.C. § 846. Id. Counts six and fourteen charged Petitioner with Distribution of

Cocaine in violation of Title 21 U.S.C. § 841. Id. Count thirty-one charged Petitioner with

Distribution of Cocaine Narcotics - Sell, Distribute, or Dispense in violation of Title 21 U.S.C. §

841. W.

At sentencing, in light of Petitioner's prior Arizona aggravated assault convictions,

Petitioner was determined to be a "career offender" under the United States Sentencing

1

Pet. App. 3a

Appendix B

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 2 of 6 PageID# 790

Guidelines ("Guidelines"), §§ 4B1.1 and 4B 1.2(a). Petitioner was sentenced to 360 months

imprisonment on October 15,2003. ECF No. 48.

On July 12, 2007, Petitioner filed his first 2255 Motion to vacate his sentence. ECF No.

174, which was subsequently dismissed on January 31, 2008. ECF No. 231. On June 18, 2012,

Petitioner filed a Motion to Dismiss. ECF No. 352. Petitioner's Motion to Dismiss was construed

as a 2255 Motion and was dismissed without prejudice on June 21, 2012. ECF No. 353. On July

28, 2014, Petitioner filed a successive 2255 Motion, ECF No. 385, but on August 08, 2014, the

United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") denied Petitioner

authorization under 28 U.S.C. § 2244 to file a successive 2255 Motion. ECF No. 390.

Consequently, this Court dismissed Petitioner's 2255 Motion for lack of jurisdiction. ECF No.

392.

On June 17, 2016, Petitioner moved the Fourth Circuit for authorization to file a

successive motion under 28 U.S.C. § 2244. ECF No. 425. The Fourth Circuit granted Petitioner

authorization to file a successive motion because he made a prima facie showing that the new

rule of constitutional law announced m Johnson v. United States, 135 S. Ct. 2551 (2015), made

retroactively applicable to cases on collateral review by Welch v. United States, 136 S. Ct. 1257

(2016), may apply to Petitioner's case. Id. On that same date, Petitioner filed the instant 2255

Motion. ECF No. 426. On March 28, 2015, Respondent filed their response. ECF No. 449. On

May 01, 2017, Petitioner filed his reply. ECF. No. 455.

II.

LEGAL STANDARD

When a petitioner in federal custody wishes to collaterally attack his sentence or

conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200,

Pet. App. 4a

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 3 of 6 PageID# 791

203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction

relief for federal prisoners. It provides in pertinent part:

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 or laws

of the United States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255(a).

In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of

proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d

546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an

appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated

on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaiipt v.

United States, 537 F.2d II82, 1183 (4th Cir. 1976).

When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the

motion and the files and records of the case conclusively show that the prisoner is entitled to no

relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether

petitioner's presence is required at the hearing is within the district court's sound discretion and

is reviewed for abuse of discretion. Raines v. United Slates, 423 F.2d 526, 529 (4th Cir. 1970)

(citing Machibroda v. United States, 368 U.S. 487 (1962)).

III.

DISCUSSION

Petitioner moves this court to "correct" or "vacate" his sentence pursuant to § 2255.

Petitioner argues his motion is timely under § 2255 (f)(3). In its analysis, the Court will address

whether Petitioner's motion is timely pursuant to § 2255(f).

Pet. App. 5a

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 4 of 6 PageID# 792

Pursuant to Title 28 U.S.C. § 2255(f), a petitioner has a one-year limitation to file this

motion. 28 U.S.C. § 2255(f).

This one-year limitation period varies depending on the

circumstances. 28 U.S.C. § 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this

section. The limitation 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 governmental 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, ifthat 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.

28 U.S.C. § 2255(f) (emphasis added).

Because Petitioner only asserts his motion is timely under § 2255(f)(3), the Court need

not analyze whether Petitioner is timely under § 2255(0(1), (2), or (4).

To be timely under § 2255(f)(3), Petitioner must show that 1) the Supreme Court has

recognized a new right; 2) the right has been made retroactively applicable to cases on collateral

review; and 3) he filed his motion within one year of the date on which the Supreme Court

recognized the right. United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (quoting §

2255(f)(3)). Specifically, § 2255(f)(3)'s limitation period begins from the date the Supreme

Court first recognized a new right, not from the date said right was made retroactive. Dodd v.

United States, 125 S. Ct. 2478, 2481-83 (2005).

In arguing timeliness. Petitioner asserts that Johnson's newly recognized rule,

retroactively made applicable by Welch, applies to § 4B1.2(a)'s residual clause. Petitioner

Pet. App. 6a

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 5 of 6 PageID# 793

specifically asserts that § 4B1.2(a)'s residual clause is unconstitutional because it contains

identical language to the ACCA's residual clause from Johnson. This argument is unavailing.

In Johnson, the Supreme Court held the Armed Career Criminal Act of 1984's ("ACCA")

residual clause under Title 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague in

violation of the Fifth Amendment's Due Process Clause. 135 S. Ct. at 2556-58. The Supreme

Court specifically addressed the language of the ACCA's residual clause, which read, "[a]

burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.'''' Id. at 2555-56 (emphasis in

original). The Supreme Court reasoned that the statute's language required an indeterminate

wide-ranging inquiry that denied "fair notice to defendants and invites arbitrary enforcement by

judges" violating the twin concerns of the Fifth Amendment. Id. at 2557. Subsequently, the

Supreme Court in Welch affirmed that Johnson announced a new substantive rule that

retroactively affected "cases on collateral review." Welch, 136 S. Ct. at 1265.

Two years later, the Supreme Court in Beckles v. United States, 137 S. Ct 886, 890

(2017), considered whether the rule announced in Johnson also applied to § 4B1.2(a)'s residual

clause. The Court held that § 4B1.2(a)'s residual clause, which read, "a burglary of a dwelling,

arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another," was constitutional and not void for

vagueness. Id. at 890-92 (quoting U.S.S.G § 4B1.2(a) (emphasis in original)). The Supreme

Court noted that the Guidelines were initially binding on district courts, Id. at 894, but the Court

in U.S. V. Booker, 125 S. Ct. 738, 746-48 (2005), rendered the Guidelines "advisory."

In Booker the Supreme Court addressed whether the Guidelines comported with the Sixth

Amendment and found that the Guidelines, as they were written, were unconstitutional. Id. 18

Pet. App. 7a

\

• '•

Case 2:02-cr-00217-RAJ Document 458 Filed 06/30/17 Page 6 of 6 PageID# 794

U.S.C. §§ 3553(b)(1) and 3742(e) were specifically problematic because they made the

Guidelines mandatory and unable to comport with the Sixth Amendment. Id. As opposed to

invalidating the Guidelines as wholly unconstitutional, the court opted to sever and excise just

these subsections. Id. By doing so, the Court rendered the Guidelines ''advisory," to comport

with the Sixth Amendment. Id.

In light of Booker, the Supreme Court in Beckles reasoned that because the Guidelines

merely advise a district court's decision in choosing an appropriate sentence, the Guidelines are

not open to a vagueness challenge under the Due Process Clause, Beckles, 137 S. Ct. at 892.

Because Petitioner's argument rests upon the same clause at issue in Beckles, where the

Supreme Court found that the Guidelines were not subject to a vagueness challenge. Johnson's

new rule is inapplicable in the instant case. Stated differently, Petitioner has not citcd a rule

recognized by the Supreme Court and made retroactively applicable to his case. Therefore, this

motion is untimely under § 2255(f)(3). For these reasons, Petitioner's motion is denied.

I.

CONCLUSION

For the reasons set forth above. Petitioner's motion is DENIED.

Additionally, because Petitioner has not set forth a specillc issue that demonstrates a

substantial showing of a denial of a constitutional right, pursuant to 28 U.S.C. § 2253(c)(2). a

Certificate of Appealability is DENIED.

IT IS SO ORDERED.

Norfolk, Virginia

June

y

2017

,

Rnviii .'>nd A. racksoii

Uiiiicd Slates Di.strict Judge

Pet. App. 8a

Case 2:02-cr-00217-RAJ Document 425 Filed 06/17/16 Page 1 of 2 PageID# 367

FILED: June 17, 2016

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-9006

(2:02-cr-00217-RAJ-5)

In re:

TERRANCE SMITH, a/k/a Ty,

Movant.

O R D E R

Terrance Smith has filed a motion pursuant to 28 U.S.C.

§§ 2244, 2255(h) (2012) for authorization to file a second or

successive 28 U.S.C. § 2255 (2012) motion.

Smith has made a prima

facie showing that the new rule of constitutional law announced in

Johnson v. United States, 135 S. Ct. 2551 (2015), and held to apply

retroactively to cases on collateral review by Welch v. United

States, 136 S. Ct. 1257 (2016), may apply to his case.

See In re

Hubbard, __ F.3d __, No. 15-276, 2016 WL 3181417 (4th Cir. June 8,

2016).

We grant authorization for Smith to file a second or

successive § 2255 motion, thus permitting consideration of the

motion by the district court in the first instance.

The one-year

limitations period of 28 U.S.C. § 2255(f)(3) for filing a § 2255

motion raising a claim relying on the Supreme Court’s decision in

Johnson expires on June 26, 2016.

Pet. App. 9a

Appendix C

Case 2:02-cr-00217-RAJ Document 425 Filed 06/17/16 Page 2 of 2 PageID# 368

Entered at the direction of the panel:

Judge Motz, Judge

Gregory, and Judge Wynn.

For the Court

/s/ Patricia S. Connor, Clerk

Pet. App. 10a