United States District Court, S.D. Alabama, Southern Division
For USA, Plaintiff (1:07-cr-00184-CG-M): Gloria A. Bedwell, Steven E. Butler, LEAD ATTORNEYS, U.S. Attorney's Office, Mobile, AL.
Ronald Benjamin Smith, Petitioner (1:13-cv-00342-CG-B), Pro se, Yazoo City, MS.
REPORT AND RECOMMENDATION
SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 72), the Government's Response (Doc. 74), Petitioner's Reply and Request for Appointment of Counsel (Doc. 75), and Petitioner's Amended Petitions (Docs. 76, 78). This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration. Because the record is adequate to dispose of this matter, no evidentiary hearing is necessary. Having carefully reviewed the record, the undersigned hereby recommends that Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be dismissed as time-barred and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, Ronald Benjamin Smith. The undersigned also recommends that should Smith file a certificate of appealability, it should be denied as he is not entitled to appeal in forma pauperis .
I. PROCEDURAL BACKGROUND
On June 28, 2007, Ronald Benjamin Smith was indicted on charges of trafficking crack cocaine and cocaine, unlawful possession of a firearm after a felony conviction, and carrying a firearm in relation to a drug trafficking offense. (Doc. 1). On September 24, 2007, Smith entered a guilty plea pursuant to a written plea agreement to possession of crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (count two), and using and carrying a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(count four). (Doc. 35). A few days before Smith's scheduled sentencing, he sought to withdraw his guilty plea on the ground that his plea was coerced. He also sought the appointment of new counsel. (Doc. 43).
At the sentencing conducted on January 11, 2008, Smith's request to withdraw his plea was denied, and he was sentenced to consecutive prison terms of 240 months on count two, and 60 months on count four. He was also granted new counsel for purposes of appeal. (Docs. 45, 47). Judgment was entered on January 18, 2008 and on January 24, 2008, Smith's new counsel filed a Notice of Non-Appeal, signed by both Smith and his new counsel (Docs. 47, 48). The Notice provides that Smith has conferred with his counsel regarding his right to appeal, including the advantages and disadvantages of filing an appeal, and that he does not desire to take an appeal of his case. (Doc. 48).
More than three years later, Smith sent a letter to the Court dated February 22, 2011. (Doc. 50). In the letter, Smith indicated that he was attempting to file a post conviction motion, and requested a copy of the indictment, judgment, docket sheet and the written plea agreement. (Id.) Smith was provided the requested documents, and on April 15, 2011, he filed a " Motion for Judicial Review of The Government's Failure to File a Rule 35(b) Motion on Behalf of Defendant" . (Doc. 51). The motion was denied on April 22, 2011, and subsequent thereto, Smith filed a " Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense pursuant to 18 U.S.C. 3582(c)(2), " which was denied on January 19, 2012. (Docs. 52, 64, 66).
Smith filed the instant habeas petition on June 24, 2013 and later filed two motions to amend the petition. (Docs. 72, 76, 78). In his petition, Smith asserts:
Because the 851(a) enhanced defendant's sentence based on a mandatory minimum and because the 851(a) was not included in the charging instrument. The 851(a) enhancement is invalid and U.S. v. Alleyne no. 11-9335 2013 is retroactive because it was a substantive rule and not a procedural rule based on the Due Process Clause of knowing what your charges are before making a decision to enter into a plea agreement. The 851(a) results in a miscarriage of justice.
(Doc. 72 at 3).
In response to Smith's petition, the Government filed a Motion to Dismiss on the ground that the petition is untimely. (Doc. 74). According to the Government, Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) is not applicable to Smith's case; thus, it cannot restart the limitations period under the provision set forth in 28 U.S.C. § 2255(f)(3). (Doc. 74). In his reply, Smith contends that 2255(f)(3) applies to his habeas petition because the Supreme Court announced a newly recognized right in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314, 24 Fla.L.Weekly Fed. S 310 (2013) that applies retroactively to his case. Smith also asserts that his petition is not time barred because he is entitled to equitable tolling based on his actual innocence and due to the fact that he received ineffective assistance of counsel. (Docs. 75, 78). According to Smith, he instructed his attorney to file an appeal, and he received bad advice when his attorney informed him that enhancements were foreclosed by circuit law. He further contends that his attorney provided him with bad advice when he advised him to enter a guilty plea although there were no facts showing that he brandished a firearm and thus, no basis for a firearm conviction. (Docs. 72, 75, 76, 78).
A § 2255 motion to vacate a federal sentence is subject to a one-year statute of limitations. Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2255 (f), the limitations period begins running from the latest specified dates, as follows:
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, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
In most cases, the triggering date is the date upon which the judgment of conviction became final under 28 U.S.C. § 2255(f)(1). In this case, the judgment was entered on January 18, 2008 and Smith's conviction and sentence became final ten days later. Fed.R.App.p.4(b)(1)(A)(i);
See Mederos v. United States, 218 F.3d 1252, 1253, 3, 13 Fla.L.Weekly Fed. C 858 (11th Cir. 2000) (" [T]he judgment of conviction became final when the time for filing an appeal expires."). Therefore, the last day that Smith could have timely filed his § 2255 petition was on January 28, 2009, one year after the statute of limitations began to run. Smith, however, did not file his § 2255 motion until June 24, 2013, which was more than four years after the time for filing had expired. (Doc. 72).
Smith acknowledges that his petition was not filed until June 24, 2013; however, he argues that it is timely under 28 U.S.C. § 2255(f)(3) because a new right was recognized and made retroactively applicable to his case by the Supreme Court's decision in Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013). (Doc. 75). The Court is not persuaded by Smith's argument. In Alleyne, the Supreme Court held that any fact that increased the applicable statutory penalty for a crime is an " 'element' that must be submitted to a jury and found beyond a reasonable doubt" . 570 U.S. at
__, 133 S.Ct. at 2155. The Alleyne Court noted that its decision did not reach the issue of whether prior convictions must be proved to a jury, and thus left undisturbed its decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See 570 U.S. at
__, 133 S.Ct. at 2160 n.1. In Almendarez-Torres, the Court held that a prior conviction is not considered an element of a crime, and it does not have to be proven to a jury beyond a reasonable doubt.
Almendarez-Torres, 523 U.S. at 246-47, 118 S.Ct. at 1232-1233; Alleyne,
570 U.S. at __, 133 S.Ct. at 2160 n.1 (stating that the Supreme Court in Alleyne is not revisiting Almendarez-Torres because the parties do not contest its vitality); United States v. Harris, 741 F.3d 1245, 1249 (11th Cir. 2014) (stating that " Alleyne did not address the specific question at issue in this case, which is whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions, " and concluding " [t]hat question continues to be governed by Almendarez-Torres").
In this case, Smith argues that he was unlawfully convicted of brandishing a firearm and that his sentence was improperly enhanced as a result; however, the record reflects that it was actually Smith's drug trafficking sentence, as opposed to his firearm sentence, that was enhanced pursuant to 21 U.S.C. § 841(b)(1)(A) due to the fact that he had a prior felony drug conviction. Smith does not contest the fact that he had a prior felony drug conviction; thus, as asserted by the Government, Alleyne is not applicable to his case. Further, even were Alleyne applicable to the facts of this case, it is not retroactively applicable on collateral review.
See United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th Cir. 2014). Thus, Alleyne does not apply to Smith's case and § 2255(f)(3) does not restart the statute of limitations. For this reason, unless Smith can demonstrate that he is entitled to equitable tolling, his habeas petition is due to be dismissed.
In " rare and exceptional circumstances, " the time for filing may be extended under the doctrine of equitable tolling. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). Equitable tolling is only appropriate " when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999), cert. denied, 531 U.S. 971 (2000)(emphasis added). It is well established that " [t]he petitioner bears the burden of showing that equitable tolling is warranted."
Hunter, 587 F.3d at 1308.
Smith asserts that he is entitled to equitable tolling of the statute of limitations because he instructed his attorney to file a direct appeal but the attorney advised him that filing a direct appeal was not necessary. He also argues that equitable tolling is appropriate because he is " actually innocent" for the following reasons: (1) 924(c) requires brandishing of a firearm; (2) 924(c) requires the firearm to be used " in relation to a drug trafficking crime not a mere possession of drugs; " and (3) he never possessed the firearm that was found. (Docs. 75, 76, 78). None of these arguments entitle Smith to tolling of the statute.
As a preliminary matter, the record reflects that Smith waited over three (3) years to make any contact with the Court. Further, he has not alleged nor offered any facts that suggest that he has diligently pursued his rights, and that some extraordinary circumstance, beyond his control, stood in his way. While Smith contends that he received ineffective assistance of counsel, he has proffered no facts that suggest, let alone demonstrate, any acts by his attorney that prevented him from timely filing his § 2255 petition.
See Lucas v. United States, 522 Fed.App'x. 556, 559 (11th Cir. 2013)(" Although [the attorney] may have incorrectly advised [defendant] about his right to directly appeal, he has not shown a causal connection between the alleged extraordinary circumstances and the late filing of his § 2255 motion."). Accordingly, Smith's ineffective of counsel argument provides no basis for equitable tolling of the limitations period.
Finally, Smith's argument that he is actually innocent of the firearm charge because there was no proof that he possessed the firearm is without merit. Actual innocence may provide a " gateway" to review of an otherwise time-barred § 2255 claim.
See House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). Smith essentially argues that his conduct did not establish criminal liability under 18 U.S.C. § 924(c) because there was no evidence that he actually possessed the firearm during the alleged drug-trafficking crime. § 924(c), as amended in 1998, provides two ways in which the statute can be violated: the statute makes it an offense to either (1) use or carry a firearm during and in relation to a drug-trafficking crime or (2) possess a firearm in furtherance of a drug-trafficking crime.
See United States v. Timmons, 283 F.3d 1246, 1250-53(11th Cir. 2002); United States v. Daniel, 173 Fed.App'x 766, 770 (11th Cir. 2006) (" Thus, there are two separate ways to violate the statute: to use or carry a firearm during and in relation to a drug trafficking crime or to possess a firearm in furtherance of a drug trafficking crime.").
By pleading guilty to the § 924(c) charge, Smith acknowledged facts sufficient to show he knowingly possessed a firearm in furtherance of a drug-trafficking crime. (Doc. 35). The factual resume accompanying Smith's plea agreement reflects that a confidential informant purchased crack cocaine from Smith at a residence in Demopolis, Alabama, and that Smith was found in a bedroom in the residence during a police search of the residence the following week. The search of the bedroom in which Defendant was located turned up a bag, under the bed, containing marijuana, powder cocaine, crack cocaine and approximately $3000 in cash. In addition, a cobra handgun was located on the top shelf of the bedroom closet. The closet was located within arms length of the bed. (Doc. 35) In a written statement to officers, Smith acknowledged that he resided at the residence, that all the drugs belonged to him, and that he knew the handgun was in the closet. (Doc. 41 at 4-5). Smith's girlfriend also provided a written statement in which she stated that Smith told her that he sold drugs. She denied any knowledge regarding the presence of the drugs or the firearm within the residence. (Id.) As noted supra, Smith pled guilty to both the § 924(c) count and to drug distribution, but now contends that he is innocent because there was no evidence he used the firearm in trafficking drugs.
To establish that a firearm was possessed " in furtherance" of a drug trafficking crime, the government must show " 'some nexus between the firearm and the drug selling operation.'" Timmons, 283 F.3d at 1253 (quoting United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001)). " The nexus between the gun and the drug operation can be established by 'accessibility of the firearm, . . . proximity to the drugs or drug profits, and the time and circumstances under which the gun is found.'" Id. (quoting United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). In this case, Smith's statements to officers and the proximity of the firearm to Smith's ongoing drug-trafficking activities established a nexus sufficient to prove a violation of § 924(c) for knowingly possessing a firearm in furtherance of a drug-trafficking crime. Thus, there was a sufficient basis to establish that Smith's conduct subjected him to criminal liability under § 924(c). Accordingly, his assertion of actual ...