US v. Eric Bernard Smith
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:03-cr-00012-RLV-2,5:12-cv-00170-RLV Copies to all parties and the district court/agency. . Mailed to: Smith. [13-6177]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
ERIC BERNARD SMITH, a/k/a Pac-Man, a/k/a E,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, District Judge. (5:03-cr-00012-RLV-2; 5:12-cv00170-RLV)
Submitted: July 18, 2017
Decided: October 11, 2017
Before KING, SHEDD, and AGEE, Circuit Judges.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Eric Bernard Smith, Appellant Pro Se. Anthony Joseph Enright, Assistant United States
Attorney, Jill Westmoreland Rose, United States Attorney, Anne Magee Tompkins,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina; Amy
Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Eric Bernard Smith, a federal prisoner currently serving a mandatory life sentence
pursuant to 21 U.S.C. § 841(b)(1)(A) (2012), appeals the district court’s order dismissing
his motion seeking relief from his life sentence through various means. In this motion,
Smith asserted that he was entitled to relief under 28 U.S.C. § 2255 (2012), and
alternatively, under 28 U.S.C. § 2241 (2012), or through petitions for a writ of error
coram nobis or for a writ of audita querela. The district court dismissed Smith’s § 2255
motion for lack of jurisdiction because it was a successive motion for which Smith had
failed to obtain prefiling authorization from this court, and denied his alternate bases for
relief. This case was most recently held in abeyance for United States v. Surratt, No. 146851, which has since been dismissed as moot. See United States v. Surratt, 855 F.3d
218 (4th Cir. 2017) (published order). This case was removed from abeyance status, and
briefing has been completed.
First, to the extent that Smith seeks to appeal the district court’s dismissal of his
motion as an unauthorized, successive § 2255 motion, we conclude that he has failed to
make the requisite showing for a certificate of appealability.
See 28 U.S.C.
§ 2253(c)(1)(B) (2012); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000); United States v. Winestock, 340 F.3d 200, 20506 (4th Cir. 2003). Accordingly, we deny a certificate of appealability and dismiss this
portion of the appeal.
To the extent that Smith appeals the district court’s denial of his alternate claims
for either a petition for a writ of audita querela or error coram nobis, we have reviewed
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the record and find no reversible error. Accordingly, we affirm that aspect of the order
for the reasons stated by the district court. See United States v. Smith, Nos. 5:03-cr00012-RLV-2; 5:12-cv-00170-RLV (W.D.N.C. Dec. 7, 2012).
Finally, we agree with the Government that, even if Smith could assert in a § 2241
petition a Simmons * challenge to the predicate felony drug convictions underlying his life
sentence, such a claim would fail as a matter of law. Specifically, success on the second
component of Smith’s Simmons claim required finding that Smith’s 1997 North Carolina
convictions for three drug offenses could not serve as predicate felony convictions for the
enhanced sentence because, by virtue of the plea agreement underlying these convictions,
Smith was not actually exposed to more than one year of imprisonment. But, as the
Government aptly identifies, our ruling in United States v. Valdovinos, which was issued
after the district court denied Smith’s § 2241 petition on other grounds, squarely
forecloses this contention. 760 F.3d 322, 326 (4th Cir. 2014) (“North Carolina’s unique
sentencing regime, not a plea agreement, determines whether a defendant’s conviction is
punishable by imprisonment exceeding one year and so qualifies as a federal sentencing
predicate.”). Accordingly, we affirm the denial of § 2241 relief in this case, albeit on the
alternate basis that Smith’s Simmons challenge to his life sentence cannot succeed.
For these reasons, we dismiss this appeal in part and affirm the district court’s
order in part. We dispense with oral argument because the facts and legal contentions are
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
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adequately presented in the materials before this court and argument would not aid the
DISMISSED IN PART;
AFFIRMED IN PART
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