Opinion
1:20-cv-04195 (GBD) (SDA)
12-31-2020
Timothy Smith, Plaintiff, v. United States of America, Defendant.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Pending before the Court is a motion brought by pro se plaintiff Timothy Smith (“Smith” or “Plaintiff”), a federal prisoner currently incarcerated at Federal Correctional Institution, Allenwood Low, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. For the reasons set forth below, I respectfully recommend that Plaintiff's motion be DENIED.
BACKGROUND
I. Smith's Indictment
The charges against Smith arose out of his participation as a member of a drug trafficking organization that operated in the Highbridge section of the Bronx (the “DTO”). (Gov't Response, ECF No. 10, at 1 (citing Presentence Investigation Report (“PSR”), 17-CR-00649 ECF No. 108, ¶ 12).) Terrell Polk, Jamel Moss and Kevin Corbett also were members of the DTO. (PSR ¶ 12.)
Citations to documents filed on the Electronic Case Filing system in this case are made using the prefix “ECF” prior to the document number. Citations to documents filed in the related criminal case, United States v. Smith, are made using the prefix “17-CR-00649 ECF” prior to the document number. Smith did not object to the PSR at his sentencing. (See Sentencing Tr., Gov't Response Ex. D, at 2.)
The DTO sold crack cocaine and marijuana and operated mainly inside and outside of a building located at 1055 University Avenue in the Bronx. (PSR ¶ 12.) Moss was in charge of drug distribution for that building. (Id.) Smith worked for Moss selling marijuana. (Id.)
The DTO together shared several firearms, including a shotgun, a revolver and two .40 caliber handguns. (PSR ¶ 12.) Polk, Moss, Corbett and Smith all shared access to these firearms and possessed these firearms at various times. (Id.)
On July 25, 2015, an individual was shot outside of 1055 University Avenue. (PSR ¶ 13.) Video surveillance recorded this shooting. On the video, Polk and Corbett were seen firing weapons at the victim. (Id.) Smith was present at the shooting, but did not appear to have a weapon. (Id.) Polk appeared to use a .40 caliber pistol, and Corbett appeared to use a revolver. (Id.) Law enforcement officers recovered .40 caliber shell casings at the scene. (Id.) The victim sustained one gunshot wound to the leg. (Id.) According to a witness, the reason for the shooting was that the victim was selling marijuana inside and outside of 1055 University Avenue without permission. (Id.)
On August 4, 2015, two individuals were shot inside a store located at 950 Anderson Avenue in the Bronx. (PSR ¶ 14.) Video surveillance showed Polk running into the store with a gun, and then running back to his car after the shooting. (Id.) According to witnesses, Polk chased two men into the store, where the two men barricaded themselves in the back room. (Id.) When Polk was not able to get into the room, he fired a shotgun blast through the door, wounding both men. (Id.) One victim sustained wounds to his leg and hand. (Id.) The other victim sustained wounds to his elbow. (Id.)
On August 26, 2015, New York City Police Department officers lawfully stopped a vehicle driven by Polk. (PSR ¶ 15.) Corbett was a passenger in the front seat, and Smith was a passenger in the back seat. (Id.) Officers executed a lawful search of the car, and a loaded pistol was recovered in the middle console of the back seat. (Id.) Lab testing revealed that the DNA on the gun matched DNA from Corbett and Smith. (Id.) Less than two weeks after the gun was found in the vehicle, Smith spoke to Polk over a recorded telephone line and told him, in coded language, about using a gun to confront drug rivals. (See Gov't Response at 2-3.)
Smith is accountable for conspiring to distribute at least 10 kilograms but less than 20 kilograms of marijuana. (PSR ¶ 19.)
On October 19, 2017, a Grand Jury in the Southern District of New York returned a three-count indictment charging Smith, Polk, Moss and Corbett with several counts of various crimes in connection with the narcotics conspiracy and associated shootings. (See Indictment, 17-CR-00649 ECF No. 2.) The Indictment charged Smith in two of those counts: (1) engaging in a narcotics conspiracy, in violation of 18 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) and (b)(1)(D) (Count One); and (2) possessing a firearm during and in relation to a drug trafficking crime, discharging that firearm, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c)(1)(a)(i) and 2 (Count Two). (Indictment ¶¶ 1-4.)
II. Plea Agreement
On August 7, 2018, Smith executed an agreement accepting a guilty plea to Count One and Count Two of the Indictment. (Plea Agmt., Gov't Response Ex. B.) Under the Plea Agreement, the Government accepted a plea to the lesser included offense for Count One of conspiring to distribute and possess with intent to distribute mixtures and substances containing a detectable amount of marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(D). (See id. at 1.) The Government also accepted a guilty plea to the lesser included offense for Count Two of possessing a firearm in connection with the drug trafficking crime charged in Count One, and aiding and abetting the same, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and 2. (See id. at 2.)
In the Plea Agreement, the parties stipulated to a Guidelines range under the U.S. Sentencing Guidelines (“Guidelines”) as to Count One of 10 to 16 months' imprisonment, with a mandatory term of 60 months' imprisonment for Count Two, to be served consecutively to the term of imprisonment for Count One. (Plea Agmt. at 3.) The total stipulated Guidelines range was therefore 70 to 76 months, with a mandatory term of 60 months' imprisonment (the “Stipulated Guidelines Range”). (See id.) Smith also agreed to a waiver provision under the Plea Agreement, which stated that “the defendant will not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 and/or Section 2241 . . . of any sentence at or below the Stipulated Guidelines Sentence of 70 to 76 months' imprisonment.” (Id. at 4.)
III. Plea Hearing
On August 7, 2018, a plea hearing was held before District Judge Daniels. (See Plea Tr., Gov't Response Ex. C.) During the plea colloquy, Smith confirmed that he had read and signed the Plea Agreement, understood the Plea Agreement and had discussed it with his lawyer before he signed it. (See id. at 12.) Smith also confirmed that he understood that, under the Plea Agreement, he was waiving his right to file any appeal of the conviction and sentence if the sentence was within or below the stipulated guideline range as set forth in the agreement. (See id. at 13.)
Smith thereafter allocuted to the charged conduct, stating that he had “agreed with others to possess with the intent to sell a detectable amount of marijuana [and] aided and abetted others to possess firearms in connection with the drug conspiracy [Smith] joined in 2015.” (Plea Tr. at 14.) Smith confirmed that he was pleading guilty because he was in fact guilty, and that his plea was made knowingly and voluntarily. (See id. at 15.)
IV. PSR And Sentencing
Consistent with the Plea Agreement, the PSR calculated that Smith's Guidelines range was 10 to 16 months' imprisonment on Count One, to be consecutive to a mandatory 60-month term on Count Two, for an adjusted sentencing range of 70 to 76 months' imprisonment. (PSR at 17). The calculation was derived from a criminal history category of I and an adjusted offense level of 12. (Id.)
At the sentencing hearing held on January 14, 2019, Judge Daniels adopted the offense level computations set forth in the PSR and the Plea Agreement. (See Sent. Tr. at 12.) After considering each of the factors set forth in 18 U.S.C. § 3553(a), Judge Daniels sentenced Smith to a sentence at the bottom of the Guidelines of 10 months on Count One, to be followed by a mandatory consecutive term of 60 months on Count Two. (Id.) Smith did not appeal his sentence. (Gov't Response at 5.)
V. § 2255 Motion
On June 1, 2020, Smith filed the instant § 2255 motion. (§ 2255 Mot., ECF No. 1.) Smith raises four grounds in his motion: (1) that the factual basis for his plea was insufficient because it failed to establish a nexus between the drug conspiracy charged in Count One and the firearms offense in Count Two (Ground One) (§ 2255 Mot. at 5; Pl.'s Mem., ECF No. 3, at 7); (2) that “once his 924(c)(1) conviction is vacated, ” his supervised release must be reduced or vacated as well (Ground Two) (§ 2255 Mot. at 7; Pl.'s Mem. at 7); (3) that his sentencing was infected by several errors, including an erroneous Guidelines calculation and/or an unconstitutionally vague underlying statutory provision (i.e., § 924(c)) (Ground Three) (§ 2255 Mot. at 6; Pl.'s Mem. at 89); and (4) that the PSR lacked “sufficient indicia of reliability to support its probable accuracy” (Ground Four) (§ 2255 Mot. at 8; Pl.'s Mem. at 10).
Smith's characterizations of the grounds underlying his motion, as set forth in his § 2255 motion itself, are not entirely consistent with the corresponding characterizations set forth in his memorandum of law. This Report and Recommendation primarily focuses on the more robust characterizations set forth in Smith's memorandum of law.
On July 14, 2020, Judge Daniels issued an Order requiring the Government to respond to Plaintiff's § 2255 motion within sixty days. (Order to Answer, ECF No. 7; Order to Answer, 17-CR-00649 ECF No. 177.) The Order to Answer also stated that Plaintiff “shall have thirty days from the date on which [he] is served with [the Government's] answer to file a response” and that, “[a]bsent further order, the motion will be considered fully submitted as of that date.” (Id.) Also on July 14, 2020, Judge Daniels referred Plaintiff's § 2255 motion to me for a report and recommendation. (Order of Ref., ECF No. 8.)
An Order previously had been entered in the criminal case setting forth a deadline for the Government's response (see 17-CR-00649 ECF No. 175), which was superseded by the July 14, 2020 Order.
On September 14, 2020, the Government filed its response in opposition to Smith's motion. Plaintiff did not file any further papers in support of his § 2255 motion. Based upon the Order of Service, the motion is considered fully submitted.
The Government's Response was filed in both this case (at ECF No. 10) and the related criminal proceeding (at 17-CR-00649 ECF No. 177). An Affirmation of Service is attached to the response reflecting that the response was served on Plaintiff by certified mail on September 14, 2020.
§ 2255 LEGAL STANDARDS
28 U.S.C. § 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by an 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.28 U.S.C. § 2255(a). Relief under § 2255 is generally available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (citations and internal quotation marks omitted)).
The statute further provides that, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). The filing of a § 2255 motion does not, by itself, obligate the district court to conduct an evidentiary proceeding. See Newfield v. United States, 565 F.2d 203, 207 (2d Cir. 1977) (filing of motion “does not entitle petitioner automatically to a hearing”). “[A]n evidentiary hearing is required on a Section 2255 motion only when the papers on the motion, measured by the same standards of competence and admissibility applicable to motions for summary judgment, reveal the existence of a genuine issue of material fact.” United States v. Sahabir, 880 F.Supp.2d 377, 383 (N.D.N.Y. 2012) (quoting Lamberti v. United States, 22 F.Supp.2d 60, 71 (S.D.N.Y.1998), aff'd, 201 F.3d 430 (2d Cir. 1999)). “An evidentiary hearing is not required ‘where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous.”” Id. (quoting United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970)).
Because Smith brings this motion pro se, the Court liberally construes his petition and interprets it to raise the strongest arguments that it suggests. See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (“It is well settled that pro se litigants are entitled to a liberal construction of their pleadings[.]”).
DISCUSSION
I respectfully recommend that Smith's motion be denied, for at least three independent reasons: it is untimely, it is barred by the collateral waiver in his plea agreement and the claims it raises are procedurally defaulted.
I. Smith's Motion Is Untimely
Pursuant to the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a one-year statute of limitations applicable to habeas petitions brought under 28 U.S.C. § 2255 begins to run on the latest to occur of the following:
(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). Under this schema, Smith's motion, dated April 27, 2020 and filed on the ECF system June 1, 2020, is untimely.
Smith mailed his motion to the Court in an envelope postmarked April 29, 2020. (See § 2255 Mot. at PDF p. 11.)
To begin, Smith's motion is untimely to the extent that his one-year limitations period began running as of the date his conviction became final, pursuant to § 2255(f)(1). Smith's conviction was entered on December 17, 2018. Because he did not appeal, his conviction became final for AEDPA purposes 14 days later, on December 31, 2018. See Fed. R. App. Pro. 4(b)(1) (allowing 14 days from judgment of conviction to file notice of appeal); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (“[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires.”). Smith did not file his § 2255 motion until, at the earliest, April 27, 2020, well more than a year after December 31, 2018. Accordingly, his motion is untimely under § 2255(f)(1). See Moshier, 402 F.3d at 11819.
Sections 2255(f)(2) and 2255(f)(4) cannot rescue Smith's motion from untimeliness, as Smith does not identify any “impediment” created by “government action” that “prevented [him] from making a [§ 2255] motion, ” or any “facts supporting” his motion that only recently have become “discover[able] through the exercise of due diligence.” See 28 U.S.C. § 2255(f)(2), (4).
While Smith's motion indicates that he is relying on “newly discovered evidence” (§ 2255 Mot. at 5, 6, 7, 8), the new “evidence” he identifies is limited to “case law not available at the time of sentencing.” (Id.) Smith's memorandum of law does not invoke or identify any newly available factual evidence. (See, e.g., Pl.'s Mem. at 1 (“Petitioner now files this timely motion to constitutionally correct an illegal sentence based on new case laws . . . concerning the 924(c) charge.” (emphasis added)).)
Smith at first glance might appear to have a colorable argument that his motion is timely under § 2255(f)(3), given that he seeks to ground his claims in “changes of the law, ” including recent Supreme Court precedent. (Pl.'s Mem. at 8 (concerning Ground Three); see also id. at 7 (Ground One “based on” a 2019 Second Circuit decision “and [the ]like”; Ground Two “based on recent decisions”); id. at 10 (Ground Four “based on new case laws”).) However, § 2255(f)(3) is applicable only where the United States Supreme Court has “recognized” a “right asserted” by the movant, and the only Supreme Court decision filed within one year of April 27, 2020 on which Smith relies, United States v. Davis, 139 S.Ct. 2319 (2019), does not in fact recognize the right Smith asserts. See Nunez v. United States, 954 F.3d 465, 469 (2d Cir. 2020), cert. denied, No. 206221, 2020 WL 7132678 (U.S. Dec. 7, 2020) (holding that “Section 2255(f)(3) requires courts to consider whether the right a petitioner asserts has been recognized by the Supreme Court as part and parcel of deciding whether a petition is timely”).
While Davis held that one portion of the definition of “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague, 139 S.Ct. at 2323-24, 2336, Davis left untouched the separate “drug trafficking crime” predicate of § 924(c) under which Smith was convicted, see Williams v. United States, No. 16-CR-00256 (KMW), 2020 WL 6683075, at *2 (S.D.N.Y. Nov. 12, 2020) (“Davis has no effect on convictions under § 924(c) where the predicate offense was a ‘drug trafficking crime,' rather than a ‘crime of violence.'”). Thus, Smith has identified no applicable Supreme Court decision recognizing a right asserted in his petition, and accordingly cannot use § 2255(f)(3) to rescue his motion from untimeliness. See Nunez, 954 F.3d at 469.
Because Smith does not identify any applicable governmental action, recently recognized right or newly discoverable facts, his limitations period began to run on December 31, 2018 pursuant to 2255(f)(1). Accordingly, his limitations period expired on December 31, 2019, rendering his motion dated April 27, 2020 and filed June 1, 2020 untimely. Accordingly, his motion should be denied.
II. Smith's Claims Are Barred By The Collateral Waiver In The Plea Agreement
Even if Smith's motion were timely, it would be barred by the waiver contained in his Plea Agreement. “A defendant's knowing and voluntary waiver of the right to appeal or collaterally attack his conviction and/or sentence is enforceable.” Sanford v. United States, 841 F.3d 578, 580 (2d Cir. 2016). In the present case, the record reflects that Smith's plea was knowing and voluntary, and he does not contend otherwise. By entering into his Plea Agreement, Smith was able to receive a sentence lower than that which could have been imposed after a conviction at trial. His Plea Agreement expressly states that he “will not file a direct appeal; nor bring a collateral challenge, including but not limited to an application under Title 28, United States Code, Section 2255 . . . of any sentence at or below the Stipulated Guidelines Sentence of 70 to 76 months' imprisonment.” (Plea Agmt. at 4.) The sentence Smith received, 70 months, fell within that bargained-for range. (See Sent. Tr. at 12.) “Having gained the benefit of the bargain from the Plea Agreement, ” Smith “cannot collaterally attack the conditions on which that benefit was given.” See Northover v. United States, No. 11-CR-00630 (KMK), 2019 WL 6173704, at *4 (S.D.N.Y. Nov. 19, 2019). Thus, the waiver contained in Smith's Plea Agreement is a second, independent basis for denial of his motion.
III. Smith's Claims Are Procedurally Defaulted
A third basis for denial of Smith's motion is the fact that his claims are procedurally defaulted as a result of his failure to pursue them through appeal. “In general, a defendant is barred from collaterally challenging a conviction under § 2255 on a ground that he failed to raise on direct appeal.” United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011). “An exception applies, however, if the defendant establishes (1) cause for the procedural default and ensuing prejudice or (2) actual innocence.” Id. Here, Smith has shown neither cause for his failure to take an appeal and ensuing prejudice, nor actual innocence.
With regard to cause, the Court will construe Smith's numerous assertions to the effect that his motion is “based on new case laws” (e.g., Pl.'s Mem. at 1, 3, 10) as an implied argument for cause, on so-called “novelty” or “futility” grounds. See, e.g., Whitman v. United States, 754 Fed.Appx. 40, 42 (2d Cir. 2018) (“To demonstrate cause, a defendant must show that some objective factor external to the defense, such as a claim that is so novel that its legal basis was not reasonably available to counsel [at the time, ] kept him from raising the claim on direct appeal.” (quotation marks, alteration and citation omitted)). Even so construed, however, Smith's motion cannot overcome the futility test's high bar. “The futility test to excuse a default is strict: the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was ‘available' at all.” United States v. Thorn, 659 F.3d 227, 233 (2d Cir. 2011) (quotation marks omitted). As the Government demonstrates in its response, litigants have been raising arguments analogous to each of those raised in Smith's motion since well before August 2018. (See Gov't Response at 8-9 & nn.6-9 (collecting cases).) Smith's motion offers no other basis for a finding of cause. Meanwhile, Smith makes no attempt to demonstrate prejudice or innocence, and the record reflects no basis for either finding. Accordingly, no exception applies here, and Smith's claims are procedurally defaulted.
Even assuming, arguendo, that Smith's motion (I) was timely, (II) was not barred by collateral waiver and (III) raised claims that were not procedurally defaulted, each of his claims still fails on the merits, substantially for the reasons cited in the Government's opposition letter. (See Gov't Response at 10-13.)
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's § 2255 Motion (ECF No. 1) be DENIED. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(B), because Plaintiff has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
My Chambers shall mail a copy of this Report and Recommendation to the pro se Plaintiff.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).