Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. United States

United States District Court, E.D. North Carolina, Southern Division

July 19, 2017

ANTHONY DANIEL SMITH, JR.
v.
UNITED STATES OF AMERICA

          ORDER

          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on initial review of petitioner's second pro se 28 U.S.C. § 2255 motion. (DE # 216.)

         In 2009, after a jury trial, petitioner was convicted of conspiracy to distribute and possess with intent to distribute marijuana in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a drug trafficking crime and aiding and abetting the same in violation of 18 U.S.C. §§ 2 and 924(c), and felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The court sentenced petitioner to a total term of 360 months imprisonment. The Fourth Circuit Court of Appeals affirmed petitioner's convictions, and the Supreme Court denied his petition for a writ of certiorari. Petitioner unsuccessfully challenged his convictions and sentence in his first pro se § 2255 motion.

         In 2016, the Fourth Circuit Court of Appeals authorized petitioner to file a second or successive § 2255 motion based on the decision of Johnson v. United States, 135 S.Ct. 2551 (2015). (DE # 213.) On 13 July 2017, the court received and filed the instant § 2255 motion, which is dated 3 July 2017. In this motion, petitioner asserts the following claims for relief: (1) his sentence under the residual clause of the Armed Career Criminal Act (“ACCA”) violates due process pursuant to Johnson; (2) the jury never determined whether petitioner's prior convictions “occurred on separate occasions and were not part of the same scheme of conduct” as the ACCA requires; and (3) because petitioner's prior convictions are not qualifying predicates under the ACCA, his sentence exceeds the statutory maximum penalty. (DE # 216.)

         The court must first examine whether these claims satisfy the standard for a second or successive claim under § 2255(h), see United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) (recognizing that once an authorized, successive collateral review application is “submitted to the district court, that court must examine each claim and dismiss those that are barred under § 2244(b) or § 2255[h].” (citing 28 U.S.C.A. § 2244(b)(4); Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001))). Under that provision, a claim that does not rely on sufficient newly discovered evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, ” must be dismissed. 28 U.S.C. § 2255(h); see also id. § 2244(b)(2)(A). Otherwise, the court considers the merits of the claim.

         Petitioner's first claim rests on Johnson. The claim meets the standard of § 2255(h)(2) as Johnson, which was previously unavailable, is a new rule of constitutional law the Supreme Court has made retroactive to cases on collateral review, Welch v. United States, 136 S.Ct. 1257 (2016). However, this claim fails on the merits. Petitioner was not sentenced under the ACCA, 18 U.S.C. § 924(e). Rather, his sentence was enhanced under the sentencing guidelines because of his career offender designation. Johnson's holding does not apply to the residual clause of the career offender guideline. United States v. Lee, 855 F.3d 244, 247 (4th Cir. 2017). Therefore, petitioner is not entitled to relief on this claim.

         Petitioner's second claim centers on the fact the jury was not required to determine beyond a reasonable doubt whether petitioner's prior convictions were committed on separate occasions and not part of the same course of conduct. For the ACCA to apply, the three qualifying convictions must have been “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). While petitioner does not cite any case in support of this claim, he may be attempting to rely on the decision of Alleyne v. United States, where the Court held that “[a]ny fact that, by law, increases the penalty for a crime is an ‘element' that must be submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. 2151, 2155 (2013) (citing Apprendi v. New Jersey, 530 U.S. 466, 483 n.10, 490 (2000)). The Supreme Court has not made this rule retroactive to cases on collateral review. See United States v. Stewart, 540 F. App'x 171, 172 n.* (4th Cir. 2013). Therefore, petitioner's second claim does not satisfy the standard for a second or successive claim under § 2255(h). Even if it did, the rule has no application here because petitioner's sentence was not increased by virtue of the ACCA.

         Finally, petitioner contends his prior convictions did not qualify him for an increased sentence under the ACCA, and thus, his sentence exceeds the statutory maximum penalty. This claim appears predicated on the success of his first two claims. Petitioner does not rely on newly discovered evidence or a new rule of constitutional law the Supreme Court has made retroactive to cases on collateral review, and therefore, this claim does not satisfy § 2255(h). At any rate, again, petitioner's sentence was not increased under the ACCA.

         The § 2255 motion is DISMISSED. The court finds that petitioner has not made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Pursuant to Rule 11(a) of the Rules Governing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.