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

Supreme Court briefSep 11, 2023

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FILED

SEP 1 1 2023

-No.

IN THE

SUPREME COURT OF THE UNITED STATES

Edward Lee Smith

—PETIT^ 'ER

(Your Name)

VS.

United States

—RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Eighth Circuit

Case No.'s: 23-1151 and 23-1146

(NAME OF COURT THAT LAST RULE ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Edward Lee Smith

(Your Name)

Federal Correctional Institution

FCI Manchester

P.O.. Box 4000.

(Address)

Manchester, Kentucky

(City, State, Zip Code)

(Phone Number)

QUESTIONS) PRESENTED

Smith1s two case's (a new charge and a supervised release revocatioiji.) .

were based on the same conduct, sentenced together as consecutive

sentences, and appealed at the same time; but, were issued separate,

appeal numbers. Smith's §2255 motion was ruled as untimely because

one appeal was disposed of a year earlier than the other, raisjLng

the following question:

exhaustion

rule"

applies

Lundy's l n total

I. Whether ______

Motions under 28 U.S.C. §2255; and If so, was the district

court in error to rule Smith's 2255 as untimely?

With the upheaval-.of circuit precedent2 wrought by this Court's

-Kisor 3 decision, was it error to not issue'a Certificate of Appealability on either of the following:

II. (a) Was Smith's counsel, constitutionally ineffective when

he failed to preserve, or even argue, the inchoate question

when counsel's contemporaries were challenging precedent in

multiple circuits?; or (b) Post Kisor, can guideline

commentary be used to expand the pre 2023 Guideline text to

include inchoate crimes as predicates for a career offender

designation?

Smith argued his first three claims were equitably tolled and

his last two claims were timely brought under 28 U.S.C. §2255(f)(4).

Contrary to the record before the court, and without an evidentiary ;

hearing, Smith's arguments were denied because.he-was not diligent,

prompting Smith to ask:

III. Whether the.Eighth Circuit erred when they did not grant a

certificate of appealability, or remand for an evidentiary

hearing on Smith's colorable diligence allegations?

1 - Rose v Lundy, 455 U.S. 509 (1982)

2 - Post' Kisor many'circuits overturned their precedence on. including inchoate crimes as career

offender predictes.

See United States v Nasir, 17 F. 4th 459 (3rd Cir. 2021) (en banc);

• United States v Campbell, 22-F.4th 438 (4th Cir. 2022); United States v Havis, 927 F.3d 382

. . (6th Cir. 2019) (en ‘banc); and United States v Dupree, 57. F.4th 1269 (11th Cir. 2023) (eh

banc). See Also 2023 U.S.S.G. Amendment cycle where the Commission struck §4Bl.l's Commentary

and inserted inchoate crimes in the list of Career Offender predicates.

3 - £isor_jv_Wilkie3 139 S. Ct. 2400 '(.2019)

LIST OF PARTIES

[x]

All parties appear in the caption of the case on the cover page.

[ ]

All parties do not appear in the caption of the case on the cover page. A list of all

parties to the proceeding in the court whose judgment is the subject of this petition

is as follows:

Table of Contents

Title Page

Issue Statement

•

Table of Contents*

•

Table of Authorities*

iii

Table of Abbreviations

N/A

Opinions Below (s. Ct,

12.4 invoked)

Constitutional and Statutory Provision Involved

Statement of the. Case................................

Reason for Granting the Writ..................................... ....

Jurisdiction *

.................................*....................... *

I. To promote:

uniformity and fairness the AEDPA's

finality policy, and vigorous protection of citizen's

rights Lundy1s total exhaustion . rule needs to be

explicity applied to Motion under 28 U.S.C. §2255.

this would prevent' lower courts from erring regarding

when finality happens like Smith's district Court

did.

. 21

A. In the Context of a federal Prisoner's habeas

motion post Jones v. Hendrix, getting the "when

is it final?" ■ question right' is a critical

process needing clear guidance. - - - -

B. Due process, the justice systems reputation for

fairness, and 28 U.S.C. §§' s 2244 and 2255(f)

text, as well as history require Lundy, and. its

progeny (Burton, Walker, and Rhines) holding(s)

be applied to Motions brought under 2 8 U.S.C.'

§2255.......................................................... .........................................

C. The district court erred by ruling that Smith's

mixed petition was untimely just because one

component of his judgement became final in March

of 2019; and the other in June of 2021. • • ■ • •

^ /**

effective

II. Smith's

Sixth

Amendment

right

representation was denied when counsel failed to

argue, or even preserve, U.S.S.G. §4Bl.4's inchoate

prior question roiling through the circuits .due to

counsel's contemporaries challenging precedent post

this Court's Kisor decision......................................

A. A GVR in light of Kisor and Stinson would bring

parity to thousands, confirm how agency deference

doctrine applies to the Guidelines, and reaffirm

counsels obligation to challenge questionable

sentences-

B. Smith's counsel failed to investigate readily

available law indicating a major

shift' in

sentencing precedence was a foot, causing his

client to be subjected to a starting guideline

range three times what it should have been.

1. As

evidenced

counsel's

contemporaries

actions, it was deficient performance, under

Strickland' s (466 U.S.

at 687)

Test for

counsel to not argue, or at least preserve the

inchoate,question.

C. U.S.S.G. §4B1; 1 (2018) is unambiguous as to what

it considers career offender predicates and

therefore

the

commentary, cannot expand its

definition to include inchoate crimes.

III. Smith alleged his post conviction actions not the

reasonable diligence standard, the Government did not

dispute this. It was error for the lower courts to

not issue C.O.A. because Smith had met §2255(b)'s

threshold for a hearing.

A. Nearly all habeas petitions (§§'s 225-4 & 2255)

incarcerated

are

initialized

pro

.se

individuals; a specific understanding of the

reasonable diligence standard in the incarcerated

context would benefit all parties.

B. The lower court arred when they failed to conform

to controlling, precedent in the holding of an

evidentiary hearing where the record before the

district court did not conclusively show Smith

was not entitled to the relief he.was requesting.

1. Controlling . law- established

evidentiary

hearings "shall be held" if the record does

not conclusively establish a petitioner is not

entitled to relief.

2. The record before the district court contained

numerous

colorable

allegations discussing

Smith's diligence in pursuit of the facts,

law,

and

evidence supporting

his

post

conviction petition.

3. The lower court overlooked Smith's tolling

allegations, presumed facts not in the record,

- and did not address conflicts in evidence

■ between the Government's claims and Smith's

sworn allegations.

-Hi

4. The district court failed to follow, and the

panel failed to enforce, well established law

regarding the granting of evidentiary hearings

necessitating this Court correct the errors

below to maintain conformity with the law.,

Conclusion

Index to Appendices

Appendix A - Eight Circuit. Denial for COA on 2019 Case

Appendix B - Eight Circuit Denial for COA on 2008 Case

Appendix C - Denial of en banc

Appendix D - Constitutional Statute provisions text

Appendix E - District Court Denial of §2255

Table of Authorities

Page(s)

. Case

:: r

Berman v. United States

302 U.S. 211 (1937). .

Burton v. Stewart

549 U.S. 147 (2007)

14, 21, 24, 25, 26

Duncan v. Walker

533 U.S. 167 (2001)

Hinton v. Alabama

571 U.S. 263 (2014)

30’,.\33 '

Holland v. Florida

560 U.S. 631 (2010)

Jones v. Hendrix

21-857 ’ (June 23 , 2023)

21, 31

Kisor v. Wilkie

139 S. Ct. 2400

Passum

(2019)

Machibroda v. United States

368 U.S. 487 (1962). . . .

. 33

Molina-Martinez v. United States

578 U.S. 189 (2015) ......

Rhines v. Weber

544 U.S. 269 (2005)

Rose v. Lundy

455 U.S. 509

(1982)

Passum

Stinson v. United States

508 U.S. 31 (1993). . .

28, 2-9

Strickland v. Washington

466 U.S. 668 (1984) . .

28, 30

Townsend v. Sain

372 U.S. 293 (1963)

United States v. Campbell

22 F. 4 th 438 (4th Cir. 2022),

i, 28

United States v. Dupree

57 F.4th 126 9(11th Cir. 2023) (en banc)

,i, 28

United States v. Havis .

927 F.3d 382(6th Cir. 2019)(en banc)

i, 28

Case

Edge (s)

•United States v. Nasir.

982 F.3d 144 (3rd Cir. 2020)

United States v. Rahimi

(22-915, June 30, 2023)

(en banc)

i, 28

i , 23

United States v. Smith

938 F.3d 1006 (8th Cir. 2020)

United States v. Winstead

890 F.3d 1082 (D. DC. 2018)

Constitution

Fifth Amendment

, 1

Sixth Amendment

Statues

28 U.S.C. §2243

28 U.S.C. §2246

28 U.S.C. §2247

28 U.S.C. §2253

1:28 U.S.C;. §2254

28 U.S.C. §2255

Passum

(a)

(b)

(d)

■(f)

(f)(1)

4, 21, 27

(f)(3)

(f)(4)

4 ' , 14, 17

Page (s)

Rules

19 , 20

Civil Rule 59(e)

Other

U.S.S.G §4B11 .

8; 31

U.S.S.G•§4B1.4

9, 10'

United States Court Administrator's

Number Nine of Form A0243 (Rev. 09/17)

Standard

Instruction24

vii

In The

Supreme Court of the United States

Petition for Writ of Certiorari

Petitioner respectfully prays that a writ of certiorari issue

to review the judgements below.

Opinions Below

This Petition is brought under S. Ct. Rule.12.4 as both judgements

appealed stem from two intertwined criminal cases from the same

appellate court.

The opinion of the United States Court of Appeals at Appendix

A (CA8 Case No.: 23-1151, the "new" (2019) criminal case) to?‘ the

petition and is unpublished.

The opinion of the United States Court of Appeals at Appendix

B (CA8 Case No.: 23-1146, the "revocation" (2008) case) to the

petition and is unpublished.

Jurisdiction

The date on which the United States Court of Appeals decided

both of my cases was March 16, 2023.

A timely petition for rehearing (on both cases) was denied

by the United States Court of Appeals on the following date: June

22, 2023, and a copy of the order denying rehearing appeasers

at Appendix C.

The jurisdiction of the Court is invoked under 28 U.S.C.

§1254 (1) .

Constructional and Statutory Provisions Involved

Amendment 5 in relevant part No

person

shall

deprived

property, with out due process of law.

life,

liberty,

Amendment 6 in relevant part In all criminal prosecutions,

the accused shall enjoy the

right to ... have the Assistance of Counsel for his defence.

Title 28 §2243 in relevant part When the writ or order is returned a day shall be set for

The applicant or the person detained may, under

hearing

oath, deny any of the facts set forth in the return or

The court . shall

allege any other material facts

• • •

•

■ •

summarily hear and determine the facts, and dispose of the

matter as law and justice require.

Title 28 §2246 On application for a writ of habeas corpus, evidence may be

taken orally or by deposition, or in the discretion of the

„ judge, by affidavit. If affidavits are admitted any party

shall have the right to propound written interrogations to

affiants r or to file answering affidavits.

Title 28 § 2247 On application for a writ of habeas corpus documentary

evidence, transcripts of proceedings upon arraignment, plea

and sentence and a transcript of the oral testimony

introduced on any previous similar application by or in

behalf of the same petitioner, shall be admissible in

evidence.

Title 28 §2253 in relevant part (c)(1) Unless

circuit

justice

certificate of appealability,

judge

issues

an appeal may not be

taken to the court of appeals from-

■ •

•

(c)(1)(B) the final order in a proceeding under section 2255

[28 USC §2255]

(c)(1)(B)(2) A certificate of appealability may issue under

paragraph (1) only if the applicant has made a

substantial

showing

the

denial

constitutional right.Title 28 §2255 in relevant part (a) 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.

(b) Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no

relief, the court shall cause notice thereof to be

served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make findings

of fact and jurisdiction, or that the sentence imposed

law or otherwise open to

was not authorized by

collateral attack, or that there has been such a denial

or infringement of the constitutional rights of the

prisoner as to render the judgement vulnerable, to

collateral attack, the court shall vacate and set the

judgement aside and shall discharge the prisoner or

resentence him or grant a new trial or correct the

. sentence as may appear appropriate

•• •

(d) An appeal may be taken to the court of appeals from the

order entered on the motion as from the final judgement

on application for a writ of habeas corpus

(f) A 1-year period of limitation shall apply to a motion

under this section. The limitation period shall run from

the latest of

• • •

-w*

(f)(1) the date on which the judgement of conviction becomes

final;

• • •

(f)(4) the date on which the facts supporting the claim or

claims presented could have been discovered through

the exercise of due diligence.

Statement Of The Case

Underlying Criminal Case Background

In 2008, a jury convicted Smith of possession with the intent

to distribute cocaine base and manufacturing cocaine base. He

was sentenced to 120 months of imprisonment and eight years of

supervised release. United States v. Smith, 983 F.3d 1006, 10071008 (8th Cir. 2020) (Reciting original 2008 case's history.)

In May of 2019 f a Minnesota grand jury indicted Smith for similar

conduct. Doc. 1.

The day after the indictment was filed the Government, through

attorney Thomas Hollenhorst, filed a document titled Ex Parte

Notice to the Court of Possible Related Cases on both Smith's

new case4, Doc. 6 and the older revocation case. Revocation Entry

4 - Because the "new case" (D. MN. 19-CR-00144-ADM) and the "revocation case" (D. MN. 08-CR-00128PAM) are significantly intertwined in this proceeding, Smith will refer .to his 2019 case as

the "new case," as it is the main case,, where his §2255 documents and proceedings were

docketed by the clerk. Smith will reference specific new case docket entries at "Doc. XX." He

will refer to the matters on the 2008 case as the "revocation case" and specific documents via

"Revocation Entry ##."

119. Later, the district court held the revocation proceedings

in abeyance because "the final revocation hearing will be rescheduled

•••

in consideration of 19-CR-144," further connecting both cases.

Revocation Entry 123 (Text only Order).

In the early stages of Smith's case, he persistently urged

Attorney Goetz, his paid defense counsel, to fully investigate

the evidence the Government planned on using against him. Specifically,

Smith asked that the controlled buys be investigated based on

the fact that he did not sell "crack" cocaine, nor was he ever

known as a source for this drug. Thus, as demonstrated by the

police searches, no evidence of the presence of "crack" cocaine

was ever found. Furthermore, Smith asked that Goetz investigate

the DNA test results based on the fact that Smith's DNA was on

only one item seized during the searches of his relative's apartment

and incidental transfer could easily have happened. Doc, 91-1

at 22.

Pretrial Investigation and Plea Stage

Each of these requests were either dismissed out of hand

by Attorney Goetz as..being irrelevant or on other occasions, Goetz

would halfheartedly agree that further investigation was a "good

idea", but he never followed through. See Exhibit A, Doc. 1481 at 18.

From the outset of Smith's case, he consistently asked his

attorney to allow Smith to view all the BRADY material the Government

planned to use in their case. However, counsel could never produce

any documentation which supported the Government's claim that

Smith had made phone calls from specific areas in and around the

city. Then on the day before the deadline for accepting the plea

agreement, almost as a last ditch effort, counsel produced a copy

of a document marked only as "APPLICATION FOR SEARCH WARRANT."

The document has no identifying marks showing what court it was

submitted to and it referenced other search warrants counsel could

not produce. /Id. This was the only "search warrant" Smith saw

until years later in November of 2021.

When Attorney Goetz presented the proposed plea agreement

to Smith, Smith questioned signing it in general. Primarily, Smith

questioned the Career Offender stipulation as many of the men

he was housed with in county jail were successfully challenging

the Government's request that they be classified as Career Offenders.

/Id.

Smith wanted to challenge the designation, not stipulate

to it. Smith wanted the matter at least be preserved for later

argument. Attorney Goetz told Smith to "just sign it." Goetz said

Smith's jail mates were winning because "their priors are State

convictions, your priors are Federal. You ARE a career offender,

period." /Id.

Smith told Goetz to challenge the Career Offender Status

no matter what, just to make a record. Goetz refused saying it

would be frivolous and could upset the judge. /Id at 19.

The next month, despite Smith's reservations (supra), he

signed a plea agreement in which the Government agreed riot to

object to Smith's probation revocation prison time running concurrently

with his new case. Doc..46 at 4. Of note, this document was only

filed on the new case, not the revocation case, even though it

affected both cases.

•

Sentencing

On November 12, 2019 the court held the combined sentencing

and revocation hearing for both cases. See Doc. 66 (New case Clerk's

minutes) and Revocation Entry 131 (Revocation case minutes). The

next day, the court filed its judgement and commitment order on

the new case committing Smith to 180 months incarcerated for the

2019 charges (Doc. 69 at 2) to "run consecutively with the sentence

imposed in case 08-CR-128-PAM." /Id. Which the "Judgement in a

Criminal Case for Revocation" reflected, running the 30 month

revocation sentence consecutively "with the sentence imposed on

case 19-CR-144-ADM/HB." Revocation Entry 133 at 2.

At the sentencing, the court established Smith's starting

sentencing Guideline range at 118 to 210 months. The court then

stated "we should deal with the revocation matter, since that's

been riding along with this." ST5 at 4:25-5:1. The court went

on to confirm with Smith, his waiver on a revocation hearing (/Id

at 5:8-9) and then stated, on the record (which was acknowledged

by the appellate court) that:

The record will reflect that the hearing has been

waived, and we'll treat that case [the revocation

case] as a part of this case [new case] under the

circumstances and do both sentencing at once.

ST at 5:16-19; 983 F.3d at 1007. The court then proceeded to discuss

the two cases interchangeably. Considering both as it crafted

a single sentence from both convictions into a single judgement.

The Government did not object and in fact agreed with treating

everything as a single sentence. ST at 13:8-9.

5 - SI is the Sentencing Transcript found at Doc. 102-1, pages 5 to 37.

Finally, the defense also considered the "ultimate sentence"

crafted by the court to be made of parts from both the new and

revocation cases, considering the final sentence as reflecting

both criminal cases. ST at.14:10-13.

Ultimately, the court treated the final sentence of 210

months as a package deal with 180 months for the new case and

30 months consecutively for the revocation. ST 21:7-13 and 22:17. This treatment is further supported by the court reminding

both sides "they have the right to appeal this sentence under

Rule 4 of, the [Appellate Procedures]," (ST 24:10-11) and closing

the hearing with:

This sentence is a —as I've indicated, I have

adjusted a downward from the career offender

guideline, as well as an adjustment with regard

to the, under 4A1.3, overstated criminal history,

for a total of 210 months.

(ST at 22:2-6). Of note, the cover sheet of the transcript is

titled "Sentencing and Final Revocation hearing" and indicates

it is filed on. both 19-CR-144 and 08-CR-128. ST at 1.

Defense counsel filed' nearly identical Notices of Appeal

on the new case (Doc. 69) and the revocation case (Revocation

Entry 134) Mr Goetz indicated on both he was appealing the sentence

and that IFP was pending before the district court. A few days

later, Goetz applied for IFP status, a waiver of fees, and CJA

appointment of counsel for both appeals. The court approved, and

ordered, IFP status for both cases on December 4 (Doc. 73 and

Revocation Entry 139) indicating in one sentence that "Smith [08CR-144, ECF No. 138; 19-CR-144, ECF No. 71] are granted." /Id.

By then, the Eight Circuit has issued two appeal numbers (193565 for the new case and 19-3528 for the revocation case) and

consolidated the cases on December 3, 2019. See Consolidation

Order, CA8 Document 4857777, filed in Eighth Circuit case's 193528 and 19-3565.

The next day, the Government filed a Motion to Dismiss the

appeal by enforcing Smith's plea waiver. Ultimately the Circuit

Court dismissed Appeal 19-3565 and broke the consolidation. See

12/27/2019 19-3565 CA8 Document 4865676; 19-3528 CA8 Document

4865694. Yet, district court records such as transcripts and such

like continued to be filed on the 19-3565 appeal docket even though

it was. both dismissed and unbound from Appeal 19-3528.

Throughout the appeal preparation, both before and after

Smith was sent to Levenworth, Kansas to start his sentence, Smith

insisted that Goetz include in the appeal a challenge to his status

as a career offender because one of the priors used to career

Smith was an attempted drug conviction. Under Smith's (and others)

theory, his inchoate prior was not countable in career offender

calculations. This is especially true applying Kisor v. Wilkie

to the Guidelines making attempt crimes no longer countable under

§4Bl.1. See Petitioner's Declaration regarding Timeliness and

Equitable Tolling of his 2255 Motion at Mil's 7-8 filed as Exhibit

C in Support of Smith's Objections, Doc. 102-2.

This discussion went on until Goetz definitively shut the

door on it via an email to Smith where Goetz states he has "no

doubts that your two prior federal felony drug offense convictions

... qualify as predicate offenses for career offender-purposes."

When Smith realized he would not be able to convince Goetz what,

on it's face, appeared to be a credible appellate issue, he worked

to determine how to get the matter raised with the appellate court

on his own. Doc. 102-2, at M12.

In early April 2020, before the case was submitted to the

direct appeal panel, Smith filed on the appellate docket "Appellant's

Petition under CJA §11 (6)", which requested the court substitute

counsel pursuant sec. II, paragraph six of the Eighth Circuit's

Criminal Justice Act Plan for reasons Smith outlined. He raised:

the same inchoate challenges to his career offender status he

had been trying to get Goetz to file. Smith's hope was the Circuit

would hold the appeal and appoint different counsel to raise the

issue. /Id at 1[13.

The appellate clerk filed the motion on the appellate docket,

19-3528 at CA8 Document 4898472 on April 2, 202,2, as a "Motion

for Appointment of Substitute Counsel," which the Clerk, on CA8

Document 4898472, ordered to be "taken with the case for consideration

by the panel which this case is submitted for disposition on the

merits."

Smith's motion for appointment of substitute counsel set

out the legal authorities and factual bases of his premise his

career offender status was illegal. For the authority and facts,

Smith cited to United States v. Winstead, 890 F.3d 1082 (D. DC.

2018) and Kisor v. Wilkie, supra. Noting that because the Guideline

Text of §4B1.1 was not ambiguous it's reach cannot be expanded

by the Guideline Commentary to include inchoate crimes, establishing

in the 19-3528 appeal the same basis, facts, and authority raised

in Ground One of his §2255.

Smith also raised specific and direct concerns regarding

Goetz's failure to research the laws and facts of.a viable issue.

The very same issue he raised in the Second Ground of his 2255.

See Doc. 91-1 at 9-17.

On December 23, 2020 the Circuit Panel issued it's opinion

affirming the court's sentence. There are three relevant points

within the Panel's opinion:

For the purpose of this Opinion, all citations to

the record originate from Case no. 19-CR-144

(ADM/HB), [the dismissed appeal.]

United States v. Smith, 983 F.3d at 1007 N. 2, the panel went

on to recite the court's finding at sentencing stating in the

opinion:

[T]he record will reflect the hearing has been

waived, and we'll treat that case [revocation]

as a part of this case

[new]

under the

circumstances and do both sentences at once.

/Id. Finally, in closing, the Circuit Court considered "the record

in it's entirety" and found that the district court

understood the sentencing guidelines were advisory

rather than mandatory ... [and also found] no error,

[therefore]

affirm

Smith's

consecutive

• • •

sentences."

. /Id at 1009.

A few hours later, a Circuit judge entered a separate order

denying as moot Smith's Motion for Substitute Counsel. Appeal

19-3528, CA8 Document 4988136.

Smith filed a timely writ of certiorari on May 12, 2021

raising the same issue Goetz raised as Smith was procedurally

barred from raising any other issue. In the writ, he noted how

the sentencing court, and the appellate court, treated both cases

as all part of the same case. On June 28, 2021, this Court denied

the writ in case no.: 20-8146. See 141 S. Ct. 2873 (2021).

Post Conviction Investigation and Activities

At about the same time Smith reached out to a local Kansas

university law school for help preparing his 2255 wanting to get

it in early and secure a spot when it was time to do his 2255.

Doc. 102r2 at 1f25. Smith was told, based on his application, they

could not help him until after his appeal was done. /Id at 1[2 6.

In August of 2020, the appellate court set Smith's appeal

for "no argument." Smith objected, pro se, which, within a few

hours of docketing, a circuit judge denied. See 19-3528 at CA8

Documents 4958631 and 4958743.

During the summer of 2020, Smith spoke to a few fellow inmates

who had extensive experience in the 2255 and habeas fields. They

reviewed the correspondence from Attorney Goetz and Smith's Sentencing

Transcripts. They told Smith that as they understood the law,

coupled with how the courts have been treating his cases, he needed

to wait until both appeals were complete before filing his 2255.

They indicated if he filed too early he could lose the ability

to challenge all parts of his sentence and convictions. Doc. 1022 at if 15. This was supported in Smith's own understanding of the

law; the University's Post Conviction Center's answer; and what

was clearly stated in 28 U.S.C. §2255 Standard Form instruction

number 9.

After almost two years of constantly attempting to get copies

of the full search warrants and affidavit application from his

attorney, on November 4, 2021, Mr. Goetz's office released two

of the multiple search warrants on Smith's case. See Doc. 1022 at If 19. Smith had never seen the search warrants before, and

they raised a whole slew of questions about the legality of the

property and cell phone searches which underpin his conviction

- 12

and plea. The very same concerns he has asked his attorney to

look into to begin with.

In early 2022, Smith worked With Andrew Wilson of Clas and

Wilson to potentially represent him on his §2255. /Id at 1(28.

They got'Smith's file from Attorney Goetz and sent Smith a copy

(/Id at 1(31-31); some of what was in Goetz's file were material

items Smith had never seen before. /Id at 1(33. Before Attorney

Wilson- would accept payment to engage on the case, he performed

a timeliness review of Smith's case and determined that Smith

was on track to file a §2255 in June of 2022. /Id at 1(29.

§2255 Motion Proceedings

Smith proceeded, based' on his understanding that his 2255

Petition had to be filed on or before June 28, 2022 (28 U.S.C.

§2255(f)(1) ) , to prepare his Motion under 28 U.S.C. §2255 where

he eventually raised five grounds. The first three regarding the

career offender status challenge and his attorney's failures therein;

and the last two addressing potential questions raised by the

contents of the two search warrants and the subsequent post conviction

investigation their discovery spawned. Doc. 91; Doc. 102-2 at

1(20.

On May 17, 2022 the court's Clerk docketed Smith's §2255

Motion, and a couple of days later the court ordered the Government

to respond to all five grounds. Doc. 92.

Because Smith's post conviction investigation was revealing

a significant amount of new material evidence which supported

and augmented Grounds Four and Five of his Petition, he filed

a Verified Motion to Stay the Proceedings in.June of 2022, via

the prisoner mailbox rule, to allow him time to amend his petition

BEFORE the Government responded. Doc. 97. The district court ignored

the motion until it dismissed Smith's 2255.

After an extension, the Government chose instead to file

a Motion to Dismiss (Doc. .99) presumably under Civil Rule 12(b)(6)

claiming that Smith's petition was untimely. To support their

position, the Government had to treat Smith's two convictions

(08-CR-00128 and 19-CR-00144) as separate cases and separate sentences.

They claimed that Smith is time-barred on the new case because

his 2255 was filed "nearly a year after it was due." Doc. 99 at

5; and none of the claims Smith raised pertained to the Revocation

case. /Id at 6.

In response Smith filed an extensive Objection to Dismissal

(Doc. 102) where Smith provided the court with "a complete picture

of the whole record" (/Id at 2) instead of the cherry picked version

the Government presented, noting as Smith does here, a fuller

picture of the record. /Id at 2-12.

In his objection, Smith raised three distinct legal and factual

arguments against the dismissal of his'2255 as untimely, specifically:

Smith argued:

(1) His §2255 motion was timely because any procedural defaults

are excused due to counsel's unconstitutional representation (Doc.

102 at 13-15); that under Burton v. Stewart, 549 U.S. 147, 156

(2007) Smith's two sentences comprised one judgement, which became

final on June 28, 2021 (/Id at 15-16); and that Rose v. Lundy,

455 U.S. 509 (1992) prevents piecemeal litigation of habeas petitions

(/Id at 16-18).

Additionally, Smith's Fourth and Fifth Grounds were timely

because they were brought under 28 U.S.C. §2255 (f) (4 ).'s clock

for the newly discovered search warrants. Which Smith saw for

the first time in November of 2021. /Id at 21-22. And which would

have completely changed Smith's position on pleading and/or withdrawing

his suppression motion. Instead of pleading, if Smith had seen

the search warrant, he would have insisted on supplementing the

suppression motion and continuing with the hearing and trial.

/Id. ;

(2) Smith offered an alternate timeliness theory that if

the Government was correct, and finality attached sooner, any

■)

clocks were tolled. Doc. 102 at 23-24. Smith noted that to have

the time tolled he would have to show he was diligent and the

circumstances that prevented his timely filing were both outside

his control and extraordinary. /Id at 23. In his sworn pleading,

Smith established: (a) his attorney withheld critical documents

from him (the actual search warrants), misled Smith as to whether

or not his case was still on appeal until June of 2021, and led

Smith to believe his cases were treated as one (/Id at 24); and

(b) that a reasonable person, all of the professionals, and the

plain reading of the law --including the instructions of the 2255

standard form— counseled Smith had to wait until both parts of

his sentence were final before his judgement was final. (/Id.)

Smith argued this meets extraordinary circumstances under

controlling law, warranting, at minimum, further hearings and

briefings on tolling; and

(3) That Smith was diligent in the pursuit of his claims

because from the outset of ,his post conviction proceeding Smith

carefully documented the numerous steps he took to be involved,

active, and engaged in both his criminal, appellate, and post

conviction processes (see supra at 12-13). He alleged steps that

he performed during an unprecedented global pandemic, with varying

obstacles thrown up by court and legal office closures, docket

freezes, and lengthy quarantines even in transportation between

jails all on top of other normal prison life. In the pleadings

and exhibits, Smith colorably established he: (a) was involved

day one and throughout his criminal case, (b) questioning counsel's

actions (Doc. 91-1 at 10), (c) gave explicit instructions to counsel

regarding the search warrants, including questioning what counsel

did eventually turn up (Doc. 91-2 1[8), and (d) throughout his

COVID-19 impacted prison journey there were periods of time where

he had no access to outside communication, his filings, or research

abilities. Doc. 97 at 2. When that occured, Smith immediately

worked with friends and'-family to get the actual search warrants

on his case from the State authorities including State courts

and his federal attorney. /Id.

Eventually, in late summer of 2021, he was able (via another

attorney) to get counsel's records. /Id. In reviewing those records,

Smith determined there were multipled search warrants he had never

seen. /Id. By November of 2021,. Smith successfully retrieved the

actual complete search warrants (/Id at 3), in reviewing these

documents, he discovered there were serious problems with them including that at critical points in the Government's case-in

chief the warrants relied on were expired, or failed to mention

the other warrants issued when applying for newer warrants from

different State judges. None of which was presented to the district

court. /Id. .

Smith realized he was out of his depth, but that the legality

of the search documents was central to his case. He contacted

a private investigator who specialized in this field for follow

ups and consultation. /Id. Realizing he was running out of time,

16 - •

but,that he had to preserve his Fourth Amendment claims, and counsel's

failure to investigate claims even though they were still factually

developing,.Smith was required to file his 2255.

As to timeliness of these two grounds, Smith brought them

pursuant 2255(f)(1) and (f)(4). He filed his motion with two skeletal

grounds. Less then 30 days later Smith filed a motion to stay

to allow him to finish gathering his facts and exhibits to properly

flesh out and present his allegations regarding failures of his

counsel to discover, or act upon, the Constitutional inadequacies

in law enforcements search and investigation of his case. Doc.

91' at 2. Smith knew that without a valid search warrant the Government's

case collapsed and his case would be dismissed, thus he had, and

could, establish counsel's performance was deficient and counsel's

failures prejudiced him because (separately) Smith's Fourth Amendment

rights were also violated. Doc. 91-1 at 21-25. Further, Smith

alleged he had seen, or been advised, about the discrepancies

in the search warrants, he would not have pled the case out and

insisted on going to trial. /Id at 19-20.

The district court denied Smith's §2255 Petition as untimely.

Doc. 105, attached as Appendix D to the Petition.

Smith filed a timely Motion to Reconsider and Request for

Clarification under Federal Rules of Civil Procedure, Rule 59(e)

(Doc. 107) in which he raised two distinct errors at law or fact;

and placed on the record the two recently discovered documents.

Smith raised two specific questions: (1) Did the district

court manifestly err when it overlooked dispositive, controlling

precedence and grant the Government's motion to dismiss as well

as deny, without an evidentiary hearing, Smith's §2255? (/Id.

at 6-13); and (2) Did the district court clearly err in its factual

finding on Smith's "diligent pursuit of the facts" determination

when his well plead facts establish otherwise? (/Id at 13-16).

He also specifically discussed the stay he requested (Doc. 93)

which, he claimed, was intended to allow him to present the recently

(November 2021). discovered sealed probation report (Doc. 1073) and the two cell phone search warrants (/Id. attachments 1

and 2) which the district court's hasty denial prevented being

litigated. /Id. at 16-17.

Smith recapped (Doc. 107 at 17 and 18) what, and how, the

three new documents affect his grounds raised and would have changed

the outcome of his criminal case if Smith had seen these three

documents:

1. November 16, 2018 cell phone ping/locate search warrant,

good for 60 days from issuance. Attached as Exhibit K,

Doc. 107.

2. A second state cell phone ping/locate search warrant,

issued by a different judge on February 6, 2019. Attached

as Exhibit L, Doc. 107.

3. Probation's sealed amended Notice of Supervised .Release

Violation Letter. A seven page report provided to the

court, which Smith never saw until he finally got a copy

of it directly from probation. Attached as Exhibit M,

Doc. 107.

The documents, at minimum, establish that the state police

were still gathering location data on Smith's phone after the

first warrant expired on January 17, 2019. But the state police

reported.to probation that:

"On February 5 [a day before the second warrant is

authorized] the undersigned was contacted by the

Minneapolis, Minnesota, Police Department indicating

the defendant was under investigation for a drug

trafficking case. It was reported the defendant's

phone was being pinged and he had been staying

at an Apple Valley, Minnesota, address for two

weeks." Exhibit M.

These two documents show that the Minneapolis police, a department

with a history of abuses, was illegally monitoring Smith's phone

based off a warrant that had been expired for at least 2-3 weeks.

This alone was never presented to Smith, or the district court

and would have caused him to refuse the plea and proceed to trial.

Also, the second warrant used to secure additional coverage

and provide the application of authorization, which apparently

fooled Mr. Goetz, was issued February 6, 2019 by a different judge

than who issued the first warrant. Compare Exhibit K and L showing

different issuing judges.

This is critical because a review of the second warrant application

establishes there is no mention of a first warrant, or the fact

it failed to produce any actionable activity beyond tracking some

of Smith's movements. This is a pivotal fact and should have been

tested under a Frank's hearing, but due to ineffectiveness of

counsel, it was not. This alone would have deterred Smith from

taking the plea, if only he had known.

As alleged in his petition, but for Smith's attorney's misadvice

that the searches were legal, when clearly they were not, he would

not have pled, the suppression hearing would have proceeded, and

the outcome would have been different. Doc. 91-1 at 21-25.

The district court in a terse order, denying Smith's 59(e)

motion, claimed "none of the movant's arguments or exhibits ...

warrant clarification." Doc. 109 at 2. Smith timely appealed the

court's denial to the Eighth Circuit.

Application For Certificate Of Appeal

Smith raised multiple questions for the circuit to consider

but grouped the questions by five issues. Four are relevant here:

Jurist of reason would strongly disagree and find very debatable

the district court's procedural failure to abide by 28 U.S.C.

2255(b)'s direction that unless the record contradicts, or the

allgeations are palpably false, colorable claims and allegations

are palpably false, colorable claims and allegations require an

evidentiary hearing (COA Application at 6-8;

Smith presented three newly discovered (to him) documents

with his 59(e) motion. The warrants were substantially different

than what attorney Goetz based his Motion to Suppress on (compare

2019 Doc. .33 at 7-22 with Exhibits J and K attached to Doc. 107)

and the section of the probation report discussing local law

enforcement's monitoring of Smith's.cell phone after the first

warrant expired (/Id at 8).

This should have prompted the lower court to order an evidentiary

hearing, or at.least additional briefing, on these newly discovered

documents, instead it claimed the documents would have no effect.

This is error under existing precedence and statute (/Id);

Jurists of reason would disagree with the lower court's finding

that Smith's petition was untimely, untollable, or otherwise

procedurally barred from being heard (/Id at 9); and

Whether inchoate crimes can count as predicate for career

offender purposes is now, post Kisor, a matter in serious doubt.

Many Circuits, and even the U.S. Sentencing Commission has recognized

the question foreshadowed by the state of the law at the time

of Smith's plea and sentencing. Yet, his counsel, and the lower

court, declared --without review, or a hearing-- the matter was

■

t '

foreclosed (/Id at 10-11).

In a single sentence, the appellate court denied Smith's

Certificate of Appealability application on March 16. See CA8

Appeal No. 23-1151 (New Case) attached at Appendix A; CA8 Appeal

No. 23-1146 (Revocation) attached.at Appendix B.

Smith timely filed, and the circuit docketed, his Motion

for en banc Rehearing where he raised two questions, recapped

in relevant part:

•• •

[D]id the Panel here err by denying COA instead of remanding

the matter because the judgement lacked finality due to: Smith's

unresolved Burton and Lundy timeliness defense (a question of

first impression) and his unaddressed misadvice of plea counsel

claim?; and

Did the Panel fail to conform to this, and the Supreme Court's

controlling precedence on the holding of evidentiary hearings

when it did not grant COA on whether or not the district court

erred when by not holding an evidentiary hearing regarding Smith's

diligence or colorable tolling allegations and claims?

Both of which the Circuit denied on June 22, 2023 as overlength

(Appendix C). This timely Petition for Certiorari follows.

Reasons To Grant The Writ

I. To promote: uniformity and fairness, the AEDPA's finality policy,

and vigorous protection of citizen's rights Lundy's total exhaustion

rule needs to be explicity applied to Motions under 28 U.S.C. §2255.

This would prevent lower courts from erring regarding when finality

happens, like Smith's district Court did.

In Jones v. Hendrix, No. 21-857 (June 23, 2023) this Court

clearly spoke: finality matters, establishing that federal prisoners

haye one realistic shot, barring a watershed moment, to bring

their extra record claims and concerns forward. Therefore, it

is critical to preserving a citizen's right to a one full and

fair hearing, that lower courts get the finality question right.

Here, both of the lower courts got it wrong.

Ignoring the language and statutory history of §§'s 2244 and

2255, and this Court's precedence, the lower.courts denied Smith

access to the full panoply of habeas proceedings his colorable

claims and allegations warranted.

Smith's case provides the perfect vehicle to settle this area

of law: Balancing a federal prisoner's right to one full, and

fair, hearing on his post conviction concerns (correct, and fair,

application of the law) with the Congress' concerns over finality

of the conviction (via the AEDPA); while preserving the court's

system's reputation.

A. In the context of a federal Prisoner's habeas motion,

post Jones v Hendrix, getting the "When is it final?"

question right is a critical process needing clear .

guidance.

Over the next few decades, as this Court continues to review

and revise Constitutional law and full implementation of prison

reform is achieved, there will be a significant up tick in cases

like here, where there is a sentence for a new charge, and one

for a revocation. Which will lead lower courts to grapple with

the very same issues this Court settled in Lundy, albeit in a

state prisoner context. Like the recent grant of certiorari in

United States v. Rahimi (22-915, June 30, 2023), it would be prudent

for this Court to be ahead of the curve and speak now.

Because there is a significant body of law developed on the

subject in .the state habeas context, and only one respondent (the

Government), the normal custom of waiting for circuits to decide

first is not necessary, nor would it add value to the discussion.

Justice Thomas made it clear in Jones that the types of relief,

and the breadth of relief between petitioners under'§2254 versus

§2255 are different and specific. /Id Op. Slip at 21-22,, indicating

§2254 relief is narrower that §2255.

Justice Thomas also recognized that the AEDPA imposes a "modified

res judicata" bar on second or successive 2255 motions. /Id at

24. The Jones decision rests on "Congress' judgement regarding

the central policy question of post conviction remedies - the

appropriate balance between finality and error correction." /Id.

As happened here, when lower courts get the central question wrong,

the Court's reputation suffers, Congress' will is thwarted, and

individual citizen's suffer.

By answering Smith's question: whether Lundy, and its progeny's

holdings (that piecemeal habeas litigation is disfavored) applies

equally to §2255 petitions, the Court will settle a brewing issue

before it boils over, similar to why the.Government asked the

Court to step in and settle Rahimi's Second Amendment question

before it had percolated in Circuits more.

Additionally, the process and line of reasoning this Court

applies to the question here will inform and instruct lower courts

as they grapple with the shifting foundations upon which decades

of law was built, but now is being adjusted as this Court continues

to review and revamp how the Constitution is interpreted and applied

to criminal law: both what is considered criminal (Rahaimi) and

how criminal procedure is to work (Jones).

B. Due process,

the justice systems reputation for

fairness, and 28 U.S.C. §§'s 2244 & 2255(f) text, as

well as history require Lundy,

and its progeny

(Burton6, Walker7, and Rhines^) holding(s) be applied

to Motions brought under 28/U.S.C. §2255.

At their core, this Court's opinions on filing mixed petitions

is summed up in the United States Court Administrator's standard

28 U.S.C. §2255. Form's instructions, which state:

[Petitioner] must include in this motion, all grounds

for relief from the conviction or sentence that [he]

challenge[s].

Instruction Number Nine of Form A0243 (Rev. 09/17).

This warning stems from well settle foundational habeas law.

First settle in Lundy where a plurality of the High Court states

that district courts should dismiss "mixed petitions" —those

with exhausted and unexhausted claims-- and that petitioners with

such petitions have two opinions. They can withdraw a mixed petition,

exhaust the rest of their claims, and then return to the lower

court with a fully exhausted petition. /Id at 550-22. Alternatively,

prisoners could proceed with only the exhausted claims in the

mixed petition and risk subjecting later petitions that raise

new claims to rigorous procedural obstacles. /Id at 520-21.. This

reasoning was adopted by Congress and codified into AEDPA amending

the habeas statutes accordingly.

A few years after the 1996 adoption of the AEDPA the High Court

further settled this matter by establishing "piecemeal litigation"

is disfavored. Walker, U.S. 533 at 180. As piecemeal litigation

is at cross purposes with the AEDPA's goal of "streaming federal

habeas proceedings." Rhines, U.S. 544 at 277.

6 - Burton-v. Stewart, 549 U.S. 147 (2007)

7 - Duncan v Walker. 533 U.S. 167 (2001)

8 - Rhines v Weber, 541 U.S. 269 (2005)

In 2007, this Court issued a per curiam decision. Burton, which

should be dispositive here. Smith's district court condoned the

Government's premise which was very similar to what Lonnie Burton

did in his habeas case, that if he, Burton, had waited to file

his first petition until the review of his sentence to become

final, he would lose the opportunity to challenge his conviction.

This position was soundly rejected by this Court, (Burton, 549

U.S. at 151) because it misread the. limitations language, which

here reads "the date on which the judgement of conviction becomes

final.” §2255 (f) (.1) . Relying on Berman v. United States, 302 U.S.

211, 212 (1937) the Burton ccurt held that "final judgement in

a criminal case means a sentence. The sentence is the judgement.

Accordingly, Burton's limitations period did not begin until both

his conviction and sentence became final by the conclusion of

direct review or the expiration of the time for seeking such review."

Burton at 156.

Because §2255 motions are a federal prisoner's only realistic

chance to present his extra record concerns on how his conviction

was obtained outside the bounds established by the Constitution

and Congress. It is reasonable that the same protections afforded

state prisoners in federal habeas litigation should be provided,

post Jones explicitly, to federal prisoners. This is especially

true when state prisoners have already had opportunities for their

concerns to be aired, but federal habeas litigators have jsut

the §2233, nothing more.

Additionally, courts have interpreted this Court's pro se pleading

jurisprudence to understand that prisoner litigants fight an uphill

battle, with the deck stacked against them and a court should

read their pleadings with leniency as incarcerated litgants are

laymen in the law, and many have less than a high school education.

- 25

Fundamental fairness and the reputation of the court system

call for the application of Lundy1s, and progeny, to be applied

with equal force to.28 U.S.C. §2255 motions as it currently does

to motions brought under 28 U.S.C.-§2254.

C. The district court erred by ruling that Smith's mixed

petition was untimely just because one component of

his judgement became final in March of 2019; and the

other in June of 2021.

At its core what the Government suggested, and the lower courts

adopted, is that Smith should have filed a "mixed petition", one

that addressed what it presumes are claims stemming solely from

the new case (19-CR-144) Doc. 99 at 6. And then a second petition

for anything arising from the revocation case (08-CR-128). This

approach.is disfavored.

The Government's reasoning, adopted by implication by both lower

courts, conflicts with both Lundy and 28 U.S.C. §2244(b). Further,

if followed, the reasoning would allow prisoners to file separate

habeas petitions in the not uncommon situation where a conviction

is upheld but a sentence is reversed, a real possibility in the

instant case.

Applying Burton's logic to Smith's case, his sentence was not

final until both of its components (convictions) were final. Which

was June 28, 2021, the conclusion of the direct review phase of

his revocation case. Put another way, because his two convictions

were treated by all (court, Government, and defense) as one case,

his judgement, which was the subject of his 19-3528 (revocation

case) did not become final until this Court denied his writ of

his certiorari on June 28, 2021, 11 months before the filing of

Smith's timely petition under 28 U.S.C. §2255.

This legal position is further supported by the fact that the

revocation appeal (19-3528) was about whether or not the court

erred by treating the revocation portion of Smith's judgement

as required to be served consecutively. A matter which was addressed

only in the plea agreement for the new case, and only filed on

19-CR-144. By the revocation appeal focusing solely on a matter

within the four corners of the new case, the boundaries of the

two cases were further blurred. Viewed another way, the sentence

the district court issued Smith was a package deal incorporating

both his convictions into a single intertwined entity or judgement.

With the above law and facts in mind, the pivotal finality

question is answered: Smith's judgement was final when the last

component (sentence) was final which was June 28, 2021 when this

Court denied certiorari. Making his May, 2022 filed §2255 timely

under 28 U.S.C. §2255(f)(l).

II. Smith's Sixth Amendment right to effective representation was denied

when counsel failed to argue, or even preserve, U.S.S.G. §4B1.4's

inchoate prior question roiling through the circuits due to counsel's

contemporaries challenging precedent post this Court's Kisor decision.

Smith's plea, sentence, and appeal were right on the cusp

of Kisor's release and perfect to test whether or not, and how,

Kisor affected the Sentencing Guidelines, specifically the career

offender designation. Smith's defense counsel missed the boat.

Ever since Smith has been asking a court to correct counsel's

error, or give him an opportunity (hearing) to prove how and why

it would affect the outcome of case.

A. A GVR in light of Kisor and Stinson would bring

parity to thousands, confirm how agency deference

doctrine applies to the Guidelines, and reaffirm

counsels

obligation

challenge

questionable

sentences.

There are thousands of career offender whose priors would

no longer count as a predicate potentially reducing their sentence

drastically. To accomplish this all that is needed is a grant,

vacate, and remand (GVR) in light of Kisor and a simple answer

would suffice.

Additionally, this case provides the opportunity to clearly

indicate in this plea dominated system it is a counsel's duty

to stay informed of, on top of, and be ready to challenge any

changes in the complex web of federal criminal sentencing law.

B. Smith's

counsel

failed to invesitgate readily

available law indicating a major shift in sentencing

precedence was a foot, causing his client to be

subjected to a starting guideline range three times

what it should have been.

Here, counsel's contemporaries were challenging, or at least

preserving, whether or not after Kisor, inchoate priors counted

as career offender predicates 9.

As established following, under Strickland's 10 familiar two

part test, Smith's attorney's failure to preserve, or argue, the

then new Kisor inflicted change to the inclusion of inchoate priors

as career offender predicates violated Smith's Sixth Amendment

rights.

9 - See United States v. Na.sir, 982 F. 3d 144 (3rd Cir.. 2020) (en banc) where in defense counsel

Keith M. Donoghue successfully argues Kisor overturned Stinson's presumption and removed

inchoate crimes from, the list of possible career offender predicates; United States v. Dupree,

57 F. 4th 1261 (11th Cir. 2023) (en banc); where Conrad B. Kahn in 2018 did the same; and

United States v. Campbell, 22 F. 4th 438 (4th Cir. 2022) where Jenny R. Thoma did the same in

2019.

10 -Strickland v, Washington, 466 U.S. 688 (1984)

counsel's

contemporaries

evidenced

(1) As

actions, it was deficient performance, under

Strickland1s

(466 U.S.

at 687 ) test for

counsel to not argue, or at least preserve the

inchoate question.

At the point where counsel was advising Smith to take a plea

stipulating that Smith was a career offender, this Court issued

Kisor narrowing the deference afforded federal executive agencies

interpretations of their own regulations.

Competent members of the Federal Defense11 Bar immediately

saw the implications of that change on the question of inchoate

priors and career offenders predicates. Because, at the time12

, inchoate crimes were only listed in the commentary to §4Bl.i,

not the Guideline text. Savy defenders knew that Kisor applied

to the Guidelines via Stinson v. United States, 508 U.S. 36 (1993).

Specifically that the guideline comments are the Commission's

opinions on the Guideline (regulation) text. /Id at 38. Which,

at the time of Stinson, were given heavy deference.

Up to date and competent defense attorneys recognized that

Kisor's deference narrowing applied to Stinson, and narrowed the

deference applied to the commentary when, like the career offender

guideline, the text was unambiguous. Based on that understanding,

defense and sentencing attorneys across the country filed challenges

to the inclusion of inchoate crimes as career offender predicates.

None of this registered with Smith's counsel, he insisted,

even during the appeal when Smith had informed him of Kisor's

implications, that none of it mattered. Smith was unquestionably

a career offender.

11 - Note 9, supra

12 - The U.S. Sentencing Commission recently moved the commentary into the text of the Guideline.

See 2023 Amendment.

With modern methods of legal research, all Smith's counsel

had to do was reach for his keyboard, and check what was happening

in other circuits, or even post on any of the sentencing blogs

the inchoate question. He would have found numerous examples of

challenges his duty to zealously represent his client required

him to raise. He did none of that, therefore he was deficient

in his representation of Smith.

The,professional norm expected of modern federal defenders

is to be aware of changes in

controlling law, and challenge application

of questionable guidelines. Here, counsel's representation fell

far below that standard rendered a Constitutionally deficient

performance. Strickland, 466

U.S. at 687; Hinton v. Alabama,

571 U.S. 263 (2014) (per curiam).

Because counsel's inadequate performance affected Smith's

starting guideline range by almost tripping the range prejudice

can be presumed; as any error in calculating the guideline range

is sufficient to "show a reasonable probability of a different

outcome." Molina-Martinez v. United States, 578 U.S. 189, 201

(2015). This squarely meets Strickland's prejudice prong. Strickland

466 U.S. at 691-96.

C. U.S.S.G. §4B1.1 (2018) is unambiguous as to what it

considers career offender predicates and therefore

the commentary cannot expand its definition to

include inchoate crimes.

A circuit split has developed over this question, it is resolved

by a straight forward application of Kisor's instrucions:

Is the regulation (guideline) text ambiguous? No

then nothing further needs to be done.

Kisor, 139 S. Ct. at 2414.

- 30

Therefore as applied to the pre 2023 U.S. Guidelines, career

offender (§4B1.1) inchoate crimes cannot be counted as predicates

to designate a particular defendant a career offender.

This Court should resolve this Circuit split, and this case

provides a great simple opportunity to grant, vacate, and remand

to accomplish the task.

III.

Smith alleged his post conviction actions met the reasonable diligence

standard, the Government did not dispute this. It was error for the

lower courts to not issue C.O.A. because Smith had met §2255(b)'s

threshhold for a hearing.

After Jones, §2255 motions are the only, realistic shot federal

prisoners have to challenge, with extra-record facts, their convictions,

or procedurally how the conviction was brought about. Here there

are two fact intensive and specific area's where statute and case

law called for an evidentiary hearing; but the district court

ignored the law to declare, contrary to the record, that Smith

was riot diligent (Docf 105 at 8); and denying both Smith's alternate

timeliness defenses

(equitable tolling and newly discovered evidence)

because Smith somehow was not diligent.

The Eighth Circuit, despite a clear showing many jurists

would disagree with the lower court's decision, declined to hold

the district court responsible for the gross failure is substantive

habeas procedure.

A. Nearly all habeas petitions (§§'s 2254 & 2255) are

initialized by pro se incarcerated individuals; a

specific understanding of the reasonable diligence

standard in the incarcerated context would benefit all

parties.

When a prisoner litigator establishes his allegations are:

not palpably false; not contradicted by the record: material to

his claims of relief; and the relief he is requesting is warranted

if his facts are true; he by statute and precedent, is required

to get an evidentiary hearing.

Too often that does not happen, district court judges make

a call, like here, without a hearing forgetting that although

what happened before them, on the criminal record, appeared to

be correct; looks can be deceiving. Due process, and the courts

reputation for fairness, requires a deeper look if a petitioner

meets specific criteria, which wa_s done here.

This case presents a good candidate to address exactly what

diligence is needed, how and when an evidentiary hearing should

be held on diligence, and how undisputed material facts should

be handled in a habeas context.

B. The lower court erred when they failed to conform to

controlling precedent on the holding of an evidentiary

hearing where the record before the district court did

not conclusively show Smith was not entitled to the

relief he was requesting.

(1) Controlling

law

establishes

evidentiary

hearings "shall be held" if the record does

not conlusively establish a petitioner is

not entitled to relief.

The panel failed to enforce Machibroda1s command that a court's

fact findings are not "impervious to extra-record" review if the

findings were "clearly wrong." Machibroda, 368 U.S. 487, 49495 (1962). Put simply as demonstrated below, infra, there were

32- -

"extra-record" or habeas-record facts that clearly replaced facts

in the prior criminal record; placing those facts in dispute.

Under Machibroda, "a hearing must be held." /Id.

Both the district court, and the Panel, failed to abide,

or enforce, this Court's clear precedent that when a habeas petitioner

alleges facts that if true, amount to ineffectiveness of counsel

(like here) a hearing must be held unless the record affirmatively

refutes (which it clearly does not) the factual assertions upon

which the claim is based. Machibroda, 368 U.S. at 494-95.

The Panel, or lower court's, failure to folloy clearly settle

law regarding ineffective assistance of counsel claims is clear

legal error. Hinton (Failure to investigate a fundamental part

of the Government's case is a "quintessential example," of unreasonable

performance under Strickland standard.)

When the record (criminal plus habeas) contains sharply

conflicting evidence, as established supra, §2255(b) mandates

an evidentiary process be conducted.

Thus, the Panel clearly erred when it did not issue a COA

on, at minimum, the lack of an evidentiary hearing in Smith's

§2255 proceedings.

(2) The

record

before

the

district

court

contained numerous

colorable allegations

discussing Smith's diligence in pursuit of

the facts, law, and evidence supporting his

post conviction petition.

Smith carefully detailed his active involvement in his case,

despite the. obstacles thrown up the COVTD-19 pandemic, a reluctant

lawyer, and prison life in general, Smith established he: stayed

in regular contact with his attorney pre-trial (Doc. 91-2 at

5-9); was involved as much as his attorney would allow during

the direct appeal (/Id at 13), going so far as to send written

instructions, which counsel declined, and even filing a separate

motion with the Appellate Court discussing problems with counsel,

and raising the inchoate question Smith wanted heard (Doc. 912);- and then he submitted a pro se certiorari petition to finalize

his criminal appeal. Pet. at 2.

During the post-conviction phase the record shows Smith was

even more proactive, where he: worked under significant COVID

protocol restructions to research the state of the law, tracking

developments spawned by Kisor (Doc. 91-2, 1(10); wrote letters,

called and coordinated with family to get the search warrants

issued by state law enforcement officers used in his criminal

case (Doc. 102-2, if If1 s 14-16); communicated with various legal

professionals regarding process and claims within his 2255 (/Id

at 24-32); and stayed in regular contact with his appellate attorney.

Smith's diligence in searching for the warrants finally paid off

in November of 2021, at which point he engaged the service of

a private investigator to determine the problems with the warrants

(/Id at 19).

All of which was on the record before the habeas court, yet'

without holding an evidentiary hearing or discussion on the record,

the court held "Smith has provided no details or documentation

to show he exercised due diligence," Doc. 105 at 8 (cleaned up)..

At minimum, Smith met the low threshold for an evidentiary

hearing on:the question of whether or not he was diligent in his

pursuit of his claims, because nothing in the record conclusively

established he was not diligent (28 U.S.C. §2255(b)) and if his

undisputed allegations were proyen true, the relief he was requesting

(tolling or timeliness under §2255 (f) (3') ) would be granted.

- 34

These deficiencies were raised both in Smith's 59(e) motion

at pages 13 and 14; and in his Application for COA, Second Issue,

Question (e).

It is very curious that, neither the lower court in response

to Smith's Motion to Reconsider, nor the Panel, addressed the

initial denial when it is very well Settled that diligence, especially

by an incarcerated litigant, is not "maximum feasible diligence,"

but instead is "reasonable diligence" in light of the circumstances

faced by the incarcerated petitioner. Holland, 560 U.S. 631, 653

(2010) .

This failure to follow, or enforce, Smith's basic rights

to a fair and just hearing on his one and only habeas proceeding

necessitates this Court correct the errors below.

3) The lower court overlooked Smith's tolling

allegations,

presumed

facts not in the

record, and did not address conflicts in

evidence between the Government's claims and

Smith's sworn allegations.

In his objection to the Government's Motion to Dismiss Smith

presented equitable tolling as an alternate theory of timeliness

specifically Smith showed where in the record already before the

court (criminal and habeas pleadings and exhibit^.), he met the

first requirement (diligence) for his statutory limit to be equitably

tolled. The record he cited to established, for equitable tolling

purposes, he had taken concrete active steps in protecting and

pursuing his rights.

For extraordinary circumstances, Smith established that the

situation was "beyond his control" (misinforming Smith on appeal

status); in some part the result of attorney misconduct (hiding

search warrants) or the by-product of a reasonable application

of then existing law. This is especially true in light of the

fact. "Every professional to view this ... misled and

’misrepresented a material fact." Doc 100 at 24.

The district court claimed, erroneously, that Smith had not

provided any documentation or proof he was diligent (Doc. 105

at 8) while misapprehending Smith's claim that no one, not even

the professionals saw the untimeliness claim coming as it upends

well established law regarding timely filing of habeas petitions

(first three Grounds); or rests on a statutory expectation for

newly discovered evidence (Grounds Four and Five.)

Either way, the lower court's failure to hold an evidentiary

hearing on the clear, specific, colorable allegations supporting

tolling was error. Which the Panel glossed oyer in their single

sentence denial of COA, and Smith respectfully asks this Court

correct.

(4) The district court failed to follow, and the

Panel failed to enforce, well established

law regarding the granting of evidentiary

hearings necessitating this Court correct

the

errors

below

maintain

conformity with the law.

All circuit's and this Court have held that when colorable

facts are (1) material to the relief requested; (2) in dispute,

sharply conflicting with the criminal record facts, or involve

questions of counsel's ineffectiveness; and (3) if true, would

warrant the relief requested 2255(b); Townsend v. Sain, 372 U.S.

293 (1963). Smith met that threshold, requiring by controlling

law an evidentiary hearing be held on his diligence, tolling,

ineffectiveness claims, or the timing of his newly discovered

evidence.

Smith simply asks this Court to enforce the law and order

at minimum COA's to issue his questions or vacate and remand thee

matter back to the appellate court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted

EdwardKLee Smith

Dated this

day of September

2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.