Smith v. United States of America

Filing 13

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 5/5/2020. (JLC)

FILED
2020 May-05 PM 02:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

BRAD LAMONT SMITH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case Nos.

2:17-cv-8045-KOB
2:07-cr-523-KOB-GMB

MEMORANDUM OPINION
This habeas case is before the court on Brad Lamont Smith’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 1);
several subsequent motions to supplement or amend his motion to vacate (docs. 8,
9, 10, & 12); 1 the Government’s response to this court’s Order to Show Cause (doc.
6); and Smith’s reply to the Government’s response (doc. 7).
Smith asserts many claims in his motion to vacate, reply and subsequent
amendments:

1

The court GRANTS all of Smith’s requests to amend or supplement his motion to
vacate (docs. 8, 9, 10, & 12). In the interest of providing Smith with the maximum opportunity
to provide all of his grounds for his motion to vacate, the court will address all grounds presented
by Smith in all of his filings, including his reply (doc. 7). The court notes that the Government
filed no sur-reply to Smith’s reply and no opposition to any of Smith’s motions to supplement or
amend his initial motion to vacate.
1

The court denied due process by imposing sentences on each individual count,
rather than using a “package concept” as authorized by Dean v. United States (docs.
1, 7) (claim 1).
He did not have a fair trial because he did not know the government paid a key
prosecution witness $50,000 for her testimony (doc. 1) (claim 2).
He was convicted of a “non-existent offense” in Count One because the Hobbs
Act robbery predicate offense “did not affect interstate commerce, or constitute a
violent crime” (doc. 1) (claim 3).
The Hobbs Act robbery predicate offense for Count One and the Post Office
armed robbery predicate offense for Count Six are no longer crimes of violence
under 18 U.S.C. § 924 (c ) after Davis v. United States (docs. 1, 7, 8, 10, 12) (claim
4).
The Hobbs Act robbery predicate offense for Count One is no longer a crime
of violence under the career offender sentencing guidelines after Davis v. United
States (docs. 10 & 12) (claim 5).
His three Alabama first-degree robbery convictions are no longer qualifying
predicate offenses under the Armed Career Criminal Act (ACCA) (doc. 9) (claim 6).
His trial counsel was ineffective for failing: (1) to seek dismissal of the Post
Office armed robbery count; (2) to argue insufficiency of evidence to support the
2

predicate robbery offenses; (3) to adequately prepare for trial; (4) to request a jury
instruction regarding accomplices; (5) to point out discrepancies between the
government’s theory and the testimony at trial; (6) to renew his motion for a
severance; (7) to renew his Rule 404(b) objection regarding the post-arrest audio tape
recordings; (8) to interview or investigate Smith’s alibi witnesses for the Post Office
robbery; (9) to allow Smith to testify; and (10) to raise more issues on appeal (doc. 7)
(claim 7).
The district court erred in failing to instruct the jury on accomplice liability, in
failing to renew his motion to sever and Rule 404(b) objections, and in failing to sua
sponte order a mistrial (doc. 7) (claim 8).
He is actually innocent of the Hobbs Act robbery predicate offense in Count
One and the Post Office armed robbery in Count Five (doc. 7) (claim 9).
The First Step Act requires a reduction of his sentence for his two § 924(c)
convictions (doc. 10) (claim 10).
The court has interpreted Smith’s claims liberally because he is not
represented by counsel in this action. See Mederos v. United States, 218 F.3d
1252, 1254 (11th Cir. 2000) (“Pro se filings, including those submitted by [the
petitioner] in the present case, are entitled to liberal construction.”). After
reviewing Smith’s motion to vacate and subsequent amendments, the
3

Government’s response, Smith’s reply, and the criminal court record, and for the
following reasons, the court finds that all of his claims in his motion to vacate
should be DENIED.
I. BACKGROUND
The Government filed a Superseding Indictment against Smith on January
29, 2008, charging him with Armed Robbery of a United States Post Office under 18
U.S.C. § 2114(a) (Count Five); Felon in Possession of a Firearm under 18 U.S.C. §
922(g) (Count Three); and two counts of Possession or Use of a Firearm in
Furtherance of a Crime of Violence under 18 U.S.C. § 924(c) (Counts One and Six).2
The predicate offense for the § 924(c) charge in Count One was an uncharged Hobbs
Act robbery and the predicate offense for Count Six was the Post Office armed
robbery charged in Count Five. (Doc. 18 in 2:07-cr-523-KOB-GMB).
Prior to his trial, Smith’s attorney, William R. Myers, filed a motion to
bifurcate that the court denied and a motion in limine that the court granted by
agreement of the Government. (Docs. 31, 38, 45 & text order on 4/04/2008 in 2:07cr-523-KOB-GMB). After a three day trial, the jury found Smith guilty on all
charges against him, and the court sentenced him on August 27, 2008 to 84 months

2

The Superseding Indictment also charged his brother Christopher LaFrance Smith under
Counts Two, Four, Five, and Seven. Brad Smith was not charged under Counts Two, Four, or
Seven.
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on Count One to run consecutively with all other counts; 327 months on Count Three
to run concurrently with Count Five; 300 months on Count Five to run concurrently
with Count Three; and 300 months on Count Six to run consecutively with Counts
One, Three, and Five. (Docs. 56 & 64 in 2:07-cr-523-KOB-GMB).
Appeal
Smith’s trial counsel, Mr. Myers, filed a Notice of Appeal on August 29, 2008,
challenging the court’s admission of (1) post-arrest phone conversations between
Smith and his sister regarding Smith’s “desire to prevent a key government witness
from testifying,” and (2) Smith’s sister’s testimony about what those conversations
meant. The Eleventh Circuit affirmed his conviction and sentence on December 9,
2009. (Docs. 67 & 85 in 2:07-cr-523-KOB-GMB). Smith did not seek a writ of
certiorari in the Supreme Court.
Habeas Case
Almost eight years later, Smith filed the current habeas motion on October
15, 2017, asking this court to vacate, set aside, or correct his sentence. 3 The court
ordered the Government to show cause in writing why it should not grant the

3

Although the docket sheet reflects a "filed date" of October 30, 2017, the court, pursuant
to the "Prisoner Mailbox Rule," deems the motion filed on October 15, 2017, the date that Smith
signed the motion and presumably delivered it to prison officials. See Washington v. United States,
243 F.3d 1299, 1301 (11th Cir. 2001) (A pro se inmate’s petition is deemed filed when he delivers
it to prison officials for mailing, presumably the date he signs it.).
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motion, and the Government filed its response on February 26, 2018. (Docs. 2 &
6). Smith subsequently filed his reply and four motions to amend or supplement
his initial motion to vacate. (Docs. 7, 8, 9, 10, & 12).
Smith is currently incarcerated at USP Terre Haute.
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 imposes a oneyear statute of limitations for filing a habeas motion under 28 U.S.C. § 2255,
which begins to run upon the triggering of one of four events. 28 U.S.C. §
2255(f)(1-4). The only two triggers that could apply to Smith’s habeas claims are
found in § 2255(f)(1) based on the date of Smith’s final conviction and (f)(3)
based on the date of an applicable Supreme Court decision that is retroactively
applicable on collateral review. The court must assess timeliness on a “claim-byclaim basis in a multiple trigger date case.” Zack v. Tucker, 704 F.3d 917, 922-26
(11th Cir. 2013).
So the court will discuss Smith’s claims using two categories: timeliness
based on § 2255(f)(1) for claims 2, 3, 7, and 8 and timeliness based on § 2255
(f)(3) for claims 1, 4, 5, and 6. The court will then discuss claim 9 involving
actual innocence; address claim 10 involving the First Step Act; and explain why
Smith is not entitled to equitable tolling on any of his untimely claims.
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Timeliness based on § 2255(f)(1) (Claims 2, 3, 7, and 8)
Under § 2255(f)(1), the one-year time limit begins to run on the “date on
which the judgment of conviction becomes final.” Smith’s one-year statute of
limitations in 28 U.S.C. § 2255(f)(1) began to run when his time to apply for writ
of certiorari with the Supreme Court expired ninety days after the Eleventh
Circuit’s December 9, 2009 decision—that is on March 15, 2010. See Kaufmann
v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002) (A judgment is “final”
under § 2255(f)(1) when the 90-day deadline to petition for writ of certiorari
expires, even if the petitioner does not seek certiorari.) So, Smith had until March
15, 2011 to file his habeas claims under 28 U.S.C. § 2255(f)(1).
Because Smith brought claims for unfair trial because government paid a
witness (claim 2), conviction of a non-existent offense (claim 3), ineffective
assistance of counsel (claim 7), and district court errors during trial (claim 8) on
October 15, 2017, over six years after the March 15, 2011 deadline under §

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2255(f)(1), and no other triggering event under § 2255(f) would apply to these
claims, they are untimely on their face. 4
Timeliness based § 2255(f)(3)
Under 28 U.S.C. § 2255(f)(3), the one-year statute of limitations began to
run on “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.” (Emphasis added).
So, any claims made by Smith based on a Supreme Court decision could be timely
if that decision applies to Smith’s case and meets all of the requirements of §
2255(f)(3).
The court will address in turn each claim that could possibly fall under §
2255(f)(3).
The court denied due process by imposing sentences on each individual
count rather than using a “package concept,” as now authorized by Dean
v. United States (doc. 1) (claim 1).
In his first claim, Smith cites the Supreme Court’s decision in Dean v. United
States, 137 S. Ct. 1170 (2017) as grounds for timeliness under § 2255(f)(3). In Dean,

4

Claims 2, 3, and 8, if not untimely, would be procedurally defaulted because Smith did
not raise them in his direct appeal. The procedural default doctrine reflects the general rule that
claims not raised on direct appeal may not be raised on collateral review. See Massaro v. United
States, 538 U.S. 500, 504 (2003). Claim 7 regarding ineffective assistance of counsel would not
be procedurally defaulted but is untimely.
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the Supreme Court held that a sentencing court may consider “a mandatory minimum
under § 924(c) when calculating an appropriate sentence for the predicate offense.”
Dean, 137 S. Ct. at 1178. Smith brought this claim within one year of the Supreme
Court’s decision in Dean and argues that, because “the record does not make clear if
the district court understood that it could consider the § 924 (c) counts mandatory
minimum sentences when imposing the sentence on the [Post Office] robbery count,
resentencing is authorized.” (Doc. 1 at 4).
But Smith’s reliance on Dean is misplaced. Neither the Supreme Court nor
the Eleventh Circuit has made Dean retroactively applicable to cases on collateral
review as required by § 2255(f)(3). The court can find no Eleventh Circuit case that
affirmatively states that Dean is not retroactively applicable, but other circuit and
district courts have held that Dean is not retroactively applicable on collateral review.
See Habeck v. United States, 741 F. App’x 953, 954 (4th Cir. 2018); In re Dockery,
869 F.3d 356 (5th Cir. 2017); Alexander v. United States, No. 6:18-cv-339-Orl28GJK, 2019 WL 4040161, at *4 (M.D. Fla. August 27, 2019); Seals v. United
States, Civ. No. 12-00545-CG, 2019 WL 2610137, at *5, (S.D. Ala. May 13, 2019),
report and recommendation adopted, 2019 WL 2606843 (S.D. Ala. June 25, 2019);
Morales-Avila v. United States, 2017 WL 9440380, *3 (N.D. Ga. August 4, 2017),
report and recommendation adopted, 2017 WL 3948926 (N.D. Ga. Sept. 8, 2017).
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Because Smith cannot show that Dean applies retroactively to cases on
collateral review, he cannot satisfy § 2255(f)(3). And reverting to the one-year
deadline in § 2255(f)(1), this claim fails as untimely as discussed above.
Predicate offenses for Counts One (Hobbs Act robbery) and Six (Post
Office armed robbery) are no longer crimes of violence under 924(c) after
Davis v. United States (docs. 1, 8, 10, 12) (claim 4).
Smith argues that the Supreme Court’s decision in United States v. Davis, 139
S. Ct. 2319 (2019) rendered the Hobbs Act robbery predicate offense for Count One
and his Post Office armed robbery predicate offense for Count Six no longer crimes
of violence under 18 U.S.C. § 924 (c ). (Docs. 1, 8, 10, 12). Although Smith raised
this claim within one year of the Supreme Court’s decision, the holding in Davis has
no effect on Smith’s convictions and this claim fails as untimely.
The jury found Smith guilty of two counts of violating 18 U.S.C. § 924(c), a
federal statute that provides mandatory minimum sentences based on using, carrying,
or possessing a firearm in connection with a federal “crime of violence.” The “crime
of violence” was an uncharged Hobbs Act robbery under 18 U.S.C. § 1951 for Count
One and an armed robbery of a Post Office under 18 U.S.C. § 2114 for Count Six.
Prior to the Supreme Court’s decision in Davis, under 18 U.S.C. §
924(c)(3)(A) and (B), a “crime of violence” was an offense that is a felony and (A)
“has as an element the use, attempted use, or threatened use of physical force against
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the person or property of another,” or that (B) “by its nature, involves a substantial
risk that physical force against the person or property of another may be used in the
course of committing the offense.” The former clause is referred to the “use-offorce” or “elements” clause, and the later clause as the “residual clause.” Davis, 139
S. Ct. at 2324.
The Supreme Court in Davis held that the residual clause in § 924(c)(3)(B) is
unconstitutionally vague, abrogating the Eleventh Circuit’s decision in Ovalles v.
United States, 905 F.3d 1231 that held the exact opposite. Davis, 139 S. Ct. at 2336.
The Eleventh Circuit subsequently held that Davis announced a new rule of
constitutional law that applied retroactively to cases on collateral review. In re
Hammond, 931 F.3d 1032, 1038-40 (11th Cir. 2019).
But Davis provides no assistance to Smith. Both of his predicate offenses
under Counts One and Six were and remain crimes of violence under the elements
clause of § 924(c)(3)(A) because each require the use, attempted use, or threatened
use of physical force against the person or property of another. And the elements
clause of § 924(c)(3)(A) remains valid despite the Supreme Court’s ruling in Davis
that § 924(c)(3)(B)’s residual clause is unconstitutionally vague. See Steiner v.
United States, 940 F.3d 1282, 1285 (11th Cir. 2019) (determining that Davis did not

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affect the defendant’s conviction under § 924(c) because the predicate offense
qualified as a “crime of violence” under § 924(c)(3)(A)’s elements clause).
Even after Davis, the Eleventh Circuit has held that Hobbs Act robbery under
18 U.S.C. § 1951 qualifies as a “crime of violence” under the elements clause of §
924(c)(3)(A). See United States v. Joseph, 0:19-cr-6005-UU-2, 2020 WL 2049074
(11th Cir. April 29, 2020) (unpublished opinion) (The Eleventh Circuit noted that it is
bound by its precedent in In re Fleur that substantive Hobbs Act robbery qualifies as
a “crime of violence” under § 924(c)’s elements clause.) (citing In re Fleur, 824 F.3d
1337 (11th Cir. 2016)); see also United States v. St. Hubert, 909 F.3d 335 (11th Cir.
2018) (en banc rehearing denied in 918 F. 3d 1174 (11th Cir. 2019) (citing In re
Fleur and holding Hobbs Act robbery is a “crime of violence” under § 924(c)(3)(A)’s
elements clause), abrogated in part on other grounds by Davis v. United States, 139
S. Ct. 2319).
To be clear, In re Fleur is binding precedent in this Circuit even after Davis.
Although In re Fleur involved an application for leave to file a second or
successive § 2255 motion, the Eleventh Circuit in St. Hubert held that “law
established in published three-judge orders issued pursuant to 28 U.S.C. § 2244(b)
in the context of applications for leave to file second or successive § 2255 motions

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is binding precedent on all subsequent panels of this Court, including those
reviewing direct appeals and collateral attacks. . . .” St. Hubert, 909 F.3d at 346.
Nothing in Davis’s holding regarding the unconstitutionality of the residual
clause of § 924(c)(3)(B) would invalidate Hobbs Act robbery as a “crime of
violence” under the elements clause of § 924(c)(3)(A). So, Davis provides no relief
for Smith’s § 924(c) conviction under Count One.
Likewise, the Eleventh Circuit in In re Watt held that armed robbery of a
United States Post Office under 18 U.S.C. § 2114 “‘indisputably describes a crime of
violence’” for purposes of § 924(c). In re Watt, 829 F.3d 1287 (11th Cir. 2016)
(quoting United States v. Dowd, 451 F.3d 1244, 1251 (11th Cir. 2006)). As explained
above, In re Watt is binding precedent in this Circuit even though it involved an
application for leave to file a second or successive § 2255 motion. So, again, nothing
in Davis would invalidate the Post Office armed robbery predicate offense under §
924(c)’s elements clause, and Davis has no effect on Smith’s § 924(c) conviction
under Count Six.

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Because the Supreme Court’s ruling in Davis does not affect or invalidate
Smith’s predicate offenses for either of his § 924(c) convictions, this claim fails as
untimely. 5
Count One’s predicate offense is no longer a crime of violence under the
career offender sentencing guidelines after Davis v. United States (docs. 10
& 12) (claim 5).
Smith argues that the Hobbs Act robbery predicate offense is no longer a crime
of violence under the career offender enhancement of the Sentencing Guidelines after
the Supreme Court’s decision in Davis that § 924(c)’s residual clause was
unconstitutionally vague. But Davis does not apply to this claim for several reasons.
The Supreme Court in Davis did not address whether Hobbs Act robbery
would qualify as a “crime of violence” under the elements clause of the career
offender enhancement in § 4B1.2(a) of the Sentencing Guidelines; Davis only dealt
with the residual clause of § 924(c)(3)(B). So, Smith cannot use Davis as the catalyst
for timeliness under § 2255(f)(3) for this particular claim and this claim is untimely
under § 2255 (f)(1).
But recently the Eleventh Circuit specifically held that Hobbs Act robbery
does not qualify as a crime of violence under the elements clause of § 4B1.2(a) of the

5

Even if Davis somehow restarted the statute of limitations under § 2255(f)(3) on this
claim, Smith would be entitled to no relief because both of his predicate offenses for Counts One
and Six by their essential nature are “crimes of violence” under § 924(c)(3)(A)’s elements clause.
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sentencing guidelines. United States v. Eason, 953 F.3d 1184 (2020). In Eason, the
Eleventh Circuit explained that “there is nothing incongruous about holding that
Hobbs Act robbery is a crime of violence for purposes of . . . [the elements clause in]
§ 924(c)(3)(A), which includes force against a person or property, but not for
purposes of [the elements clause in] U.S.S.G. § 4B1.2(a)(1), which is limited to force
against a person.” Eason, 953 F.3d at 1191 (quotations and citations omitted).
Because the elements clause in § 924(c)(3)(A) was broader and could reach the use,
attempted use, or threatened use of force against property, Hobbs Act robbery
satisfied that elements clause. But because Hobbs Act robbery “sweeps more
broadly” than § 4B1.2(a)(1)’s elements clause that is limited to force against a
person, it “cannot count as a crime of violence.” Eason, 953 F.3d at 1189.
But Eason does not help Smith. Because Eason is not a Supreme Court
decision, that case cannot serve as grounds for timeliness under § 2255(f)(3). More
importantly, Eason does not apply to Smith’s case because Hobbs Act robbery did
not serve as the “crime of violence” for his career offender status under U.S.S.G. §
4B1.2(a)(1).
Pursuant to the Presentence Investigation Report, under “Chapter Four
Enhancements,” Smith had previously been convicted of three crimes of violence, all
for first-degree robbery under Alabama law, which remain crimes of violence as
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discussed below. The PSR indicates under “Chapter Four Enhancements” that the
armed robbery of the Post Office under Count Five served as the “crime of violence”
that made him a “career offender within the meaning of U.S.S.G. § 4B1.1” and
makes no mention of the Hobbs Act robbery in Count One (Doc. 62 at 14 in 2:07-cr523-KOB-GMB). So, the uncharged Hobbs Act robbery that served as the predicate
offense for the § 924(c) charge in Count One had no role in Smith’s career offender
status under the Sentencing Guidelines.
Nothing in Davis or Eason applies to this claim, and it is untimely under §
2255 (f)(1).
His three Alabama first-degree robbery convictions no longer qualify as
predicate offenses under the ACCA (doc. 9) (claim 6).
Smith argues that his three first-degree robbery convictions under Alabama
law no longer qualify as predicate offenses under the ACCA. He cites United
States v. Walton, in which the Ninth Circuit Court of Appeals held that the
defendant’s conviction for Alabama first-degree robbery was not a “crime of
violence” under the elements clause of the ACCA. 881 F.3d 768 (9th Cir. 2018).
Smith’s reliance on Walton is misplaced for two reasons. First, only a
Supreme Court decision that is made retroactively applicable to cases on collateral
review can satisfy the requirements for timeliness under§ 2255(f)(3). Walton, as a
Ninth Circuit case, does not trigger the applicability of § 2255(f)(3), and this
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claim is untimely under § 2255(f)(1)’s one-year deadline from his final judgment.
And the Eleventh Circuit, which provides binding precedent to this court,
has held since Walton that an Alabama first-degree robbery conviction qualifies as
a “crime of violence” under the elements clause of the ACCA “because Alabama
robbery has an element that requires force with the intent to overcome the
physical resistance of another.” United States v. Hunt, 941 F.3d 1259, 1262 (11th
Cir. 2019) (citing In re Welch, 884 F.3d 1319, 1324 (11th Cir. 2018)). So,
regardless of the Ninth Circuit’s opinion, the Eleventh Circuit’s holdings in Hunt
and Welch control in this Circuit.
Smith also argues that because this court granted his brother Christopher
Smith’s § 2255 motion in 5:16-cv-8072-KOB based on an underlying conviction
no longer being a “crime of violence” under the ACCA, this court should also
grant Smith’s motion to vacate. But one of Christopher Smith’s underlying
predicate offenses for the ACCA was an Alabama conviction for shooting a
firearm into an occupied vehicle, which the Government agreed was no longer a
“crime of violence” under the ACCA after Johnson v. United States, 135 S. Ct.
2551 (2015). Smith’s Alabama first-degree robbery convictions, however, remain
“crimes of violence” under the ACCA.
Actual Innocence (doc. 9)(claim 9)
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Smith alleges in several filings that he is “actually innocent” of the predicate
offenses of Hobbs Act robber and Post Office armed robbery in his § 924(c)
counts. “A showing of actual innocence provides an exception to the time-bar
under AEDPA.” Mims v. United States, 758 F. App’x 890, 892 (11th Cir. 2019)
(citing McQuiggin v. Perkins, 569 U.S. 383 (2013)). “[A]ctual innocence, if
proved, serves as a gateway through which a petitioner may pass whether the
impediment is a procedural bar . . . or, as in this case, expiration of the statute of
limitations.” McQuiggin, 569 U.S. at 386.
To meet the threshold requirement for actual innocence to excuse a time-bar
under § 2255(f), a petitioner must “persuade[] the district court that, in light of
new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” McQuiggin, 569 U.S. at 386 (emphasis added).
Smith has not met this threshold. He has presented no new evidence that he
is actually innocent of the Hobbs Act robbery or the Post Office robbery. He
instead recounts all the evidence presented at trial or available to him at trial and
explains why that evidence was insufficient for a jury conviction. But the court
has no new evidence before it that would even hint at meeting the high burden of
proving actual innocence.
Smith seems to argue that, because he claims that his predicate offenses for
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his § 924(c) convictions are no longer “crimes of violence,” he is “actually
innocent” of those crimes. But “actual innocence” means “‘factual innocence,’ as
opposed to mere legal innocence.” Rozzelle v. Sec’y, Fla. Dept. of Corr., 672 F.3d
1000, 1013 (11th Cir. 2002). Smith cannot base his actual innocence claim on his
legal arguments. But even if he could, as discussed above, the predicate offenses
for his § 924(c) convictions are “crimes of violence” under the elements clause.
So, Smith has failed to demonstrate that he is factually innocent of any of the
underlying convictions that formed the basis for his § 924(c) counts, or that any of
those convictions subsequently were vacated. See Spencer v. United States, 773
F.3d 1132, 1139 (11th Cir. 2014) (“A prisoner may challenge a sentencing error . .
. on collateral review when he can prove that he is actually innocent of his crime
or that a prior conviction used to enhance his sentence has been vacated.”). And
he has offered nothing to rebut the evidence presented by the Government that
Smith was in fact guilty of those crimes.
Smith’s actual innocence claim lacks merit and does not serve as a basis for
excusing the untimeliness of his claims.
First Step Act (doc. 10) (claim 10)
Smith argues that the First Step Act of 2018 “further supports vacating and
setting-aside” his sentences. (Doc. 10 at 4). Section 403 of the First Step Act
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eliminated the ability of federal prosecutors to “stack” multiple § 924(c) charges.
Section 403 modified the language of § 924(c) to clearly state that the mandatory
minimum sentence of 25 years for any “second or subsequent” offense only
applies “after a prior conviction under this subsection has become final.” First
Step Act of 2018, Pub. L. No. 115-391, § 403(b).
But Section 403 “provides expressly that the amendment to § 924(c) applies
only to defendants not yet sentenced when the Act was enacted.” Willingham v.
United States, No 19-12207, 2020 WL 1053098 (11th Cir. March 4, 2020)
(unpublished opinion) (citing language from First Step Act of 2018, Pub. L. No.
115-391, § 403(b) (“amendments to section 924(c) ‘shall apply to any offense that
was committed before the date of enactment of this Act, if a sentence for the
offense has not been imposed as of such date of enactment.’ (emphasis added)”).
Assuming arguendo that the First Step Act could be a ground for § 2255
relief, it would not help Smith because he was sentenced many years after the
Act’s enactment in 2018, making it in applicable by its own terms. So, this claim
fails.
Equitable Tolling
The deadlines under § 2255(f)(1) and (f)(3) are “garden variety statute of
limitations,” and not “jurisdictional bar[s].” Mims, 758 F. App’x at 892. A court
20

may equitably toll the statute of limitations if the petitioner can show “(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” See San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (quoting Holland v. Florida, 130 S.
Ct. 2549, 2562 (2010)) (emphasis added). Equitable tolling is a “rare and
extraordinary remedy.” San Martin, 633 F.3d at 1267.
Smith fails to address—let alone show— due diligence or any extraordinary
circumstance that prevented him from filing his claims in a timely manner. The
court finds no grounds on which to apply equitable tolling in this case to any of
Smith’s untimely claims.
III. CONCLUSION
For all of the reasons discussed above, the court finds that all of Smith’s
claims for habeas relief under § 2255 should be DENIED.
The court will enter a separate Final Order.
DONE and ORDERED this 5th day of May, 2020.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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