United States District Court, N.D. Alabama, Northeastern Division
SHARON LOVELACE BLACKBURN, District Judge.
This case is before the court on petitioner Skyler Tarquin Smith's "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [hereinafter Motion to Vacate]. (Doc. 1.) Smith was charged in a seven-count Indictment with (1) wire fraud in violation of 18 U.S.C. § 1343; (2) falsely claiming to be a service disabled veteran for purposes of bidding on a government contract in violation of 18 U.S.C. § 1001; (3) falsely claiming in writing to have received a Purple Heart Medal in violation of 18 U.S.C. § 704(b); (4) falsely claiming in writing to have received a Bronze Star in violation of 18 U.S.C. § 704(b); (5) wearing a Combat Infantry Badge without authorization in violation of 18 U.S.C. § 704(a); (6) wearing a Senior Parachutist Badge without authorization in violation of 18 U.S.C. § 704(a); and (7) wearing an Air Assault Badge without authorization in violation of 18 U.S.C. § 704(a). ( See generally Crim. Doc. 1.) Smith pleaded guilty to all counts. (Crim. Doc. 28 at 1.)
Smith filed this Motion to Vacate pursuant to 28 U.S.C. § 2255, asking the court for relief from a 24-month sentence that the court had imposed after Smith entered a guilty plea. (Doc. 1; Crim. Doc. 28.) Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that Smith's Motion to Vacate, (doc. 1), is due to be granted in part and denied in part.
A. COUNTS THREE THROUGH SEVEN - UNITED STATES v. ALVAREZ
After Smith filed his Motion to Vacate, the Supreme Court decided United States v. Alvarez, 132 S.Ct.. 2537 (2012). In Alvarez, a plurality of the Supreme Court found the Stolen Valor Act, 18 U.S.C. § 704(b), was an unconstitutional infringement on speech protected by the First Amendment. Id. at 2551.
The Government now concedes that Smith's convictions for Count Three, falsely claiming to have been awarded a Purple Heart Medal, and Count Seven, falsely claiming to have been awarded a Bronze Star Medal, for violations of § 704(b) are due to be vacated in light of Alvarez. Therefore, the court will grant Smith's Motion to Vacate and vacate his conviction on these two counts.
Smith also argues that Alvarez compels that his convictions on Counts Four through Six, convictions based on his wearing service badges, should also be vacated. Counts Four through Six of the Indictment charged Smith with knowingly wearing Armed Forces badges without authorization in violation of 18 U.S.C. § 704(a). (Crim. Doc. 1 at 6 [Count Four: Combat Infantry Badge], 7 [Count Five: Senior Parachutist Badge; Count Six: Air Assault Badge].) Smith does not distinguish between Counts Three and Seven, alleging violations of 18 U.S.C. § 704(b) that the Supreme Court found unconstitutional in Alvarez, and Counts Four through Six, alleging violations of § 704(a) that the plurality opinion does not address; however, he appears to be challenging only Counts Three and Seven based on his claims and not Counts Four through Six based on his wearing of service badges.
Smith contends, "Although the Movant may, or may not have, at one point, verbally claimed to have been awarded one or more medals or decorations for which he was not authorized, it is attested that the Statute under which the Movant is charged is Unconstitutional as a content-based restriction on First Amendment Free Speech." (Doc. 1 at 5 [emphasis added].) Also, he alleges:
[I]t should be obvious to this Honorable Court that Movant was criminally prosecuted under a previously ruled, Unconstitutional Act, as it pertains to Freedom of Speech, in this case, Movant"s supposed verbal claims to having been awarded one or more military medals or decorations for which he was not authorized.
(Doc. 1 at 6 [emphasis added].)
The Supreme Court's opinion in Alvarez addressed only speech made unlawful by § 704 (b); it not address the legality of § 704(a). In his dissenting opinion, Justice Alito noted:
Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain military decorations without authorization. See Act of Feb. 24, 1923, ch. 110, 42 Stat. 1286 (codified as amended at 18 U.S.C. § 704(a)). Although this Court has never opined on the constitutionality of that particular provision, we have said that § 702, which makes it a crime to wear a United States military uniform without authorization, is "a valid statute on its face."
Alvarez, 132 S.Ct. at 2558 (Alito, J., dissenting).
Because Smith challenges his convictions based on his statements and not his conduct of knowingly wearing badges he was not authorized to wear, the court finds that Smith has not alleged a ground for relief pursuant to § 2255 as to his conviction and sentence for violating § 704(a) as set forth in Count Four through Six of the Indictment. Therefore, his Motion to Vacate will be denied as to these counts.
B. COUNTS ONE AND TWO
As to Counts One and Two, Smith contends that the Government withheld exculpatory evidence and that his Plea Agreement and guilty plea to these Counts were based on ineffective assistance of counsel.
The Government contends that Smith's claims are barred by his appeal/habeas waiver in his Plea Agreement and procedurally barred by his failure to exhaust his claims on direct appeal. Although the court believes the Government is correct, it will address the obvious lack of merit of Smith's claims.
This court "applies a strong presumption' that statements made by a defendant during his plea colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Therefore, when a defendant makes statements under oath at a plea colloquy, he bears a heavy burden to show his statements were false.' United States v. Rogers, 848 F.2d 166, 168 (11th Cir.1988)." United States v. Borden, 580 Fed.Appx. 870, 871 (11th Cir. 2014). "[I]n the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements." Jones v. United States, Nos. 12-24521-CIV, 11-20767-CR; 2014 WL 4906217, *13 (S.D. Fla. Sept. 30, 2014)(quoting United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005)).
The Plea Agreement, signed by Smith as well as initialed by him on each page, provides:
In January 2009, Mr. Lynn MORSTAD had been searching the internet (i.e. eBay) for the past year and a half for a diamond, to upgrade his wife's wedding ring, as a surprise. MORSTAD found an eBay advertisement listing for a 4.98 carat, flawless, diamond, on eBay with a selling price of $140, 000. On February 21st, 2009, MORSTAD contacted the defendant Skyler Smith (SMITH), the seller, at the e-mail address provided, expressing an interest in the diamond. SMITH's advertisement indicated the diamond had an appraised value of $200K or $300K, but SMITH offered to sell the diamond for $140, 000. MORSTAD offered $70, 000, but SMITH indicated he would not accept less than $140, 000 for the diamond. Several days passed and there was no communication between the two parties.
On February 26th, 2009, SMITH contacted MORSTAD and indicated there were no other bids for the diamond, therefore, SMITH would accept MORSTAD's offer of $70, 000. SMITH provided MORSTAD with several documents to support and verify his identity and the authenticity of the diamond. SMITH sent via e-mailed, to MORSTAD, copies of the following documents:
a) a printout from Sotheby's [Auction] sale/purchase price of $73, 000, with a date of May 15, 2008;
b) a Gemological Institute of America grading report dated 08/07/2008, (GIA report #17480046);
c) a copy of Skyler Tarquin Smith's valid Alabama State Driver's License, expiration date 06/1612010;
d) a NEJ Gallery Diamond Appraisal report that listed the replacement value of the 4.98 carat diamond at $350, 000, ...