Smith v. United States of America

Filing 8

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 11/10/2014. (KAM, )

FILED
2014 Nov-10 PM 02:49
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DEDRICK G. SMITH,

)
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA,)
)
Respondent.
)

Case Nos. 2:13-cv-8008-LSC-TMP
(2:92-cr-0169-LSC-TMP)

MEMORANDUM OF OPINION
This is a successive habeas corpus petition filed pursuant to 28 U.S.C. § 2255
on March 19, 2013, by Petitioner, Dedrick G. Smith (“Smith”). On October 16, 2014,
the magistrate judge filed his report and recommendation, recommending that
Smith’s petition be transferred to the Eleventh Circuit Court of Appeals for that court
to determine whether to grant the necessary authorization for the filing of a successive
petition in this Court. Petitioner filed an objection to the report and recommendation
on November 7, 2014. For the following reasons, the Court will adopt and accept the
portion of the report and recommendation concluding that this Court lacks
jurisdiction to consider the successive motion, but the Court will not accept the
recommendation to transfer this action to the appellate court. Instead, the action will
be dismissed.

I.

Background
Smith’s judgment of conviction for felony murder of a federal agent while in the

line of duty, in violation of 18 U.S.C. §§ 1111 and 1114, became final on April 24, 1995,
when the United States Supreme Court denied Smith’s petition for writ of certiorari
on direct appeal. Smith filed his first § 2255 petition in this Court on April 24, 1997,
alleging ineffective assistance of counsel. After an evidentiary hearing, the petition
was denied and dismissed with prejudice on January 25, 2001. See Smith v. United
States, 2:97-cv-8030-LSC-TMP. The United States Court of Appeals for the
Eleventh Circuit affirmed the denial of the first § 2255 petition on July 13, 2001.
Smith filed a second such petition on August 4, 2004,1 which was dismissed as
successive and for lack of an authorizing order from the Eleventh Circuit on May 16,
2005. See Smith v. United States, 2:92-cr-169-LSC-TMP. Smith did not appeal.
In this, his second successive petition, Smith now claims that his counsel
rendered ineffective assistance in failing to communicate the Government’s plea offer
to him until the offer had already expired. Smith asserts that this petition is timely
under 28 U.S.C. § 2255(f)(3), because it was filed within one year of the United States
Supreme Court’s decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012), and its

1

Smith titled the petition a motion to dismiss the indictment, but it was construed by the
Court as a petition brought pursuant to § 2255.
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companion decision, Missour v. Frye, 132 S. Ct. 1399 (2012), which were both issued
on March 21, 2012, and which Smith argues are applicable to his case because they
relate to effective assistance of counsel at the plea bargaining stage.2
II.

The Report and Recommendation and Objection
The magistrate judge determined that Smith’s petition should be denied and

dismissed for lack of subject matter jurisdiction because it is successive to the two
previous § 2255 petitions Smith has filed and because Smith has not obtained the

2

There is a one-year statute of limitations applicable to a petitioner’s claims under
28 U.S.C. § 2255. That statute states, in pertinent part:
A 1-year period of limitation shall apply to a motion under this
section. The limitations period shall run from the latest of--(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).
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requisite authorization from the Eleventh Circuit Court of Appeals before filing the
petition, as required by 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). However, the report
and recommendation also noted that because Smith filed the petition at the very end
of the applicable one-year statute of limitations under 28 U.S.C. § 2255(f)(3), if this
action were dismissed to allow him to re-file his petition after receiving authorization
from the appellate court, the petition would be time barred, as it would be filed more
than one year after the Lafler and Frye opinions were issued. As such, rather than
dismiss the action, the report and recommendation opines that the interests of justice
counsel in favor of transferring it to the Eleventh Circuit Court of Appeals pursuant
to 28 U.S.C. § 1631,3 for that court to determine whether to grant the necessary
authorization for the filing of a successive petition in this court. The magistrate judge
noted that pursuant to 28 U.S.C. § 1631, if Smith is successful is obtaining the
authorizing order from the Eleventh Circuit, his successive petition would remain
3

28 U.S.C. § 1631 provides:

Whenever a civil action is filed in a court as defined in section 610 of this title or
an appeal, including a petition for review of administrative action, is noticed for or
filed with such a court and that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer such action or appeal to any
other such court in which the action or appeal could have been brought at the time
it was filed or noticed, and the action or appeal shall proceed as if it had been filed
in or noticed for the court to which it is transferred on the date upon which it was
actually filed in or noticed for the court from which it is transferred.

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deemed filed on March 19, 2013.
Petitioner’s objection to the report and recommendation urges this Court to
construe his motion as a motion for reconsideration of his previously-dismissed § 2255
motions pursuant to Fed. R. Civ. P. 59(e) or 60(b) so that the Court will have
jurisdiction over the motion.
III.

Discussion
Having now carefully reviewed and considered de novo all the materials in the

court file, including the report and recommendation and the objection thereto, the
Court is of the opinion that the report is due to be and is hereby adopted insofar as it
concludes that this Court lacks subject matter jurisdiction to consider this successive
§ 2255 petition.4 However, the Court does not accept the magistrate judge’s
recommendation that, in the interests of justice, the petition be transferred to the
Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 1631.

4

Petitioner cannot use Fed. R. Civ. P. 60 or 59 as a procedural vehicle to re-open and
vacate his sentence based on the new claim that his counsel was ineffective pursuant to Lafler and
Frye. A Rule 60(b) motion, which asserts a claim for relief, rather than “pointing out a defect in
the integrity of the earlier §2255 motion proceeding . . . is the equivalent of a second or
successive motion and is barred by § 2255(h).” Gilbert v. United States, 640 F.3d 1293, 1323
(11th Cir. 2011) (citing Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005)). A petitioner must file a
Rule 59(e) motion “no later than 28 days after the entry of judgment.” Fed. R. Civ. P. 59(e). “A
court must not extend the time to act under” Rule 59(e).” Fed. R. Civ. P. 6(b)(2). Petitioner’s
motion, if construed as a Rule 59(e) motion, is untimely, as his previous judgments on his § 2255
motions were in 1997 and 2005.
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Several factors lead this Court to conclude that the interests of justice do not
favor a transfer to the Eleventh Circuit. First, the language of 28 U.S.C. §
2244(b)(3)(A) plainly instructs habeas petitioners like Smith to obtain the requisite
authorization from the Eleventh Circuit Court of Appeals before filing a successive
petition in the district court. See 28 U.S.C. § 2244(b)(3)(A) (“[b]efore a second or
successive application [for a writ of habeas corpus] is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application”). Indeed, Smith has already had one
successive § 2255 petition dismissed for failure to obtain Eleventh Circuit
authorization, so he was on notice that an authorizing order from the Eleventh Circuit
court of appeals is a prerequisite to filing a successive § 2255 petition in this court.
Second, as noted by the magistrate judge, the Eleventh Circuit in Guenther v. Holt
declined to decide whether transferring a successive § 2255 petition to the appellate
court pursuant to 28 U.S.C. § 1631 would be a “viable” option in situations where
denial of the transfer would effectively bar the petitioner from relief due to a time-bar.
173 F.3d 1328, 1330-31 (11th Cir. 1999). However, the court also stated in dicta that
the other circuits that had permitted such transfers under § 1631 had not explained
why that statute was an appropriate authority for a transfer of a successive § 2255

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petition and expressed “concerns” with such a procedure given that § 2244(b)(3)(A)
requires the applicant to move in the court of appeals before filing a successive petition
in the district court. Id. at 1130 n.4. Finally, even if the Eleventh Circuit were to
authorize the filing of Smith’s successive petition, it would be denied by this Court as
untimely filed. Smith asserts that his petition is timely because under § 2255(f)(3)
because it was filed within one year after Lafler and Frye were decided. However, his
reliance on the Lafler/Frye decision of the Supreme Court in an effort to establish the
timeliness of his petition is misplaced because those cases do not apply retroactively,
which is a prerequisite to application of § 2255(f)(3). See In re Perez, 682 F.3d 930,
932-33 (11th Cir. 2012) (finding no basis for retroactive application for the Lafler/Frye
decisions).
IV.

Conclusion
For all of the foregoing reasons, a transfer of this action to the Eleventh Circuit

Court of Appeals is not in the interests of justice. The Court will dismiss this action.
A separate order will be entered.

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Done this 10th day of November 2014.

L. Scott Coogler
United States District Judge
[160704]

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