United States v. Smith

1

United States of America, Plaintiff, v. Edward Lee Smith, Defendant.

CRIMINAL Nos. 08-128 PAM, 19-144 ADM/HB

Civil Nos. 22-174 ADM, 22-1334 PAM

United States District Court, D. Minnesota

October 20, 2022

Thomas M. Hollenhorst, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

Edward Lee Smith, pro se.

MEMORANDUM OPINION AND ORDER

ANN D MONTGOMERY, U.S. DISTRICT COURT

I. INTRODUCTION

This matter is before the undersigned United States District Judge for a ruling on Defendant Edward Lee Smith's (“Smith”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [2019 Case Docket No. 91] [2008 Case Docket No. 148]; Motion to Stay [2019 Case Docket No. 97]; and Motion to Close Briefing [2019 Case Docket No. 104].^[1] Also before the Court is Plaintiff United States of America's (the “Government”) Motion to Dismiss Defendant's § 2255 Motion [2019 Case Docket No. 99] [2008 Case Docket No. 149]. For the reasons set forth below, Smith's Motions are denied and the Government's Motion is granted.

II. BACKGROUND

A. District Court Proceedings

On May 14, 2019, Smith was charged in a one-count Indictment with Possession with the Intent to Distribute Controlled Substances in violation of 21 U.S.C. §§ 841(a)(1) and 841(a)(1)(B).

Indictment [2019 Case Docket No. 1]. Smith pled guilty to possessing on February 20, 2019 approximately 1,678 grams of cocaine, 884 grams of fentanyl-laced heroin, and 608 vials of THC oil. Plea Agreement [2019 Case Docket No. 46] ¶ 2.

At the time of Smith's 2019 offense, he was on supervised release with the U.S. Probation Office as a result of his federal conviction in 2008 for Manufacturing Cocaine Base and Possession with Intent to Distribute Cocaine Base. See Sentencing J. [2008 Case Docket No. 57]. The Probation Office filed a Petition for Violation of Supervised Release in the 2008 Case, alleging that Smith had violated the terms of his supervised release by possessing controlled substances. See Petition [2008 Case Docket No. 103].

On June 25, 2019, Smith's counsel filed several pretrial motions in the 2019 Case, including a motion to suppress evidence. See Mot. Suppress [2019 Case Docket No. 32]; Mem. Supp. Mot. [2019 Case Docket No. 33]. Smith's suppression motion was based on his contentions that law enforcement had obtained his cell phone records without a warrant and that probable cause was lacking for the warrant used to search a Minneapolis residence. Id. Approximately 10 days before the scheduled hearing date on the motion, Smith withdrew the suppression motion to enter a plea agreement with the Government. See Letters [2019 Case Docket Nos. 38, 39]; Order Cancelling Mot. Hr'g [2019 Case Docket No. 40].

On July 31, 2019, Smith entered a plea of guilty to the charge in the Indictment. Min. Entry [2019 Case Docket No. 44]; Plea Agreement [2019 Case Docket No. 46]. In the Plea Agreement, the parties stipulated that Smith was a career offender under the § 4B1.1(b)(1) of the United States Sentencing Guidelines. Plea Agreement ¶ 7.a. The Plea Agreement also included an appeal waiver provision in which the Government agreed not to appeal the sentence unless it was less than 144 months, and Smith agreed not to appeal the sentence unless it was greater than 216 months. Id. ¶ 12.

On November 13, 2019, the Court held a sentencing hearing in Smith's 2019 Case and a final revocation hearing in his 2008 Case. Min. Entry [2019 Case Docket No. 66]; Min. Entry [2008 Case Docket No. 131]. At the hearing, the Court informed Smith that his guilty plea to the possession charge “involves a violation of your sentencing supervised release from your previous case, because there's a new offense and you had obviously a requirement to have no new offenses and not be involved with narcotics.” Sentencing and Final Revo. Tr. [2019 Case Docket No. 83] [2008 Case Docket No. 141] at 5. Smith acknowledged this and waived any hearing on the revocation petition. Id. The Court then stated, “[T]he record will reflect that the hearing has been waived, and we'll treat that case as a part of this case under the circumstances and do both sentencings at once.” Id.

The Court sentenced Smith in the 2019 Case to a term of 180 months of imprisonment and a supervised release term of eight years. Id. at 21; Sentencing J. [2019 Case Docket No. 67]. The Court then sentenced Smith in the 2008 Case for his supervised release violation. The Court imposed a term of imprisonment for 30 months, to run consecutively with the 180-month sentence in the 2019 Case. Sentencing and Final Revo Tr. at 22; Sentencing J. [2008 Case Docket No. 133].

B Appeals of Smith's Sentences

Smith filed separate appeals of his sentences in the 2019 and 2008 Cases. See Notice Appeal [2019 Case Docket No. 69]; Notice Appeal [2008 Case Docket No. 134]. The Government moved to dismiss Smith's appeal of his sentence in the 2019 Case, arguing that Smith had waived the right to appeal his sentence in the Plea Agreement. See United States v. Smith, Appeal No. 19-3565, Entry ID 4862145. The Eighth Circuit granted the Government's motion and entered judgment dismissing the appeal on December 27, 2019. Id. at Entry ID 4865676. Smith did not file for a writ of certiorari with the United States Supreme Court to review this judgment.

In Smith's appeal of his sentence in the 2008 Case, the only ground raised was whether this Court erred by imposing a consecutive rather than concurrent sentence. See United States v. Smith, Appeal No. 19-3528, Entry ID 4875652.^[2] The Eighth Circuit affirmed Smith's 30-month consecutive sentence on December 23, 2020, and entered judgment. United States v. Smith, 983 F.3d 1006 (8th Cir. 2020); USCA J. [2008 Case Docket Nos. 143, 144]. Smith filed for a writ of certiorari to review the judgment. Def.'s App. [Docket No. 102, Attach. 1] at 24-31.^[3] The sole ground raised in the petition was whether the sentence in Smith's 2008 Case should have been concurrent rather than consecutive. Id. The United States Supreme Court denied the petition on June 28, 2021. Smith v. United States, 141 S.Ct. 2873 (2021).

C. Present Motions

On May 17, 2022, Smith filed this 2255 Motion in both his 2019 Case and his 2008 Case. Smith alleges five grounds in the 2255 Motion: (1) the Court created a “manifest injustice” by applying the career offender enhancement to his sentence; (2) Smith's counsel was ineffective during sentencing and on appeal by not challenging the Court's “misapplication” of the career offender guideline; (3) counsel was ineffective at the plea stage for advising Smith to agree to a plea that included a stipulated career offender designation; (4) counsel was ineffective for failing to investigate or challenge the Government's evidence; and (5) Smith's Fourth Amendment rights were violated by law enforcement's illegal search of his cell phone records. 2255 Mot. at 2.

The Government has filed a motion to dismiss Smith's § 2255 Motion. The Government argues that the 2255 Motion in the 2019 Case is time-barred because it was filed more than a year after the judgment and conviction in that case became final. The Government further argues that the 2255 Motion in the 2008 Case fails to state a claim upon which relief can be granted.

III. DISCUSSION

A. Legal Standards

1. Section 2255

28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of their sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries which were outside a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987).

2. Ineffective Assistance of Counsel

“To establish ineffective assistance of counsel within the context of section 2255 . . . a movant faces a heavy burden.” Apfel, 97 F.3d at 1076. A defendant must show that “(1) his attorney's performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) he was prejudiced by the attorney's poor performance.” Pierce v. United States, 686 F.3d 529, 531 (8th Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668 (1984)). The defendant must overcome the “strong presumption” that his counsel provided reasonable assistance. Id. Overcoming that presumption requires a showing that, “in light of all the circumstances, the lawyer's performance was outside the range of professionally competent assistance.” Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997). If the defendant can show his counsel's performance was inadequate, he then must show that, but for the deficient performance, the outcome of his case would have been different. Id.

B. Smith's 2255 Motion in the 2019 Case

1. Timeliness

The Government argues that Smith's § 2255 Motion in the 2019 Case is time-barred under § 2255(f). This provision includes a one-year statute of limitations provision that runs from the latest of four events:

(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

...