Smith v. USA

Filing 8

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Please see attached Ruling & Order for details. The Clerk may close the case. Signed by Judge Robert N. Chatigny on 2/7/18. (Jones, P.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL SMITH,
Petitioner,
V.
UNITED STATES,
Respondent.

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CASE No. 3:16-cv-2014(RNC)

RULING AND ORDER
Petitioner Michael Smith, a federal inmate, brings this
action pro se under 28 U.S.C. § 2255.

He claims the evidence is

insufficient to support his conviction, the government presented
perjured testimony, he was denied the right to confront witnesses
against him, and his counsel was constitutionally ineffective.
The Government argues that the claims should be dismissed without
a hearing because they were rejected on appeal and lack merit.

I

agree and therefore deny the petition.
I. Background
Smith was the subject of a wiretap investigation that
confirmed his leadership role in a drug distribution conspiracy.
He was indicted on one count of possession with intent to
distribute cocaine and one count of conspiracy to distribute and
to possess with intent to distribute 280 grams or more of cocaine
base and five kilograms or more of cocaine.

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The case was tried

to a jury.

The evidence showed that Smith frequently purchased

wholesale quantities of cocaine and cocaine base (“crack”) for
resale to street sellers, some of whom were co-defendants.
Smith moved for a judgment of acquittal at the close of the
government’s case and again after the close of the evidence on
the ground that the evidence was insufficient to support a guilty
verdict.

Both motions were denied.

The verdict form contained a series of questions.

The form

required the jury to state whether the government had proven the
two elements of the conspiracy charge beyond a reasonable doubt.
The form stated that if the government had met this burden, the
jury would have to answer questions concerning drug type and
quantity.
The jury was instructed that a quantity of drugs was
attributable to Smith if during the existence of the conspiracy
and in furtherance of its unlawful objectives, he and a coconspirator engaged in a transaction involving that quantity or
other conspirators engaged in a transaction involving that
quantity and it was reasonably foreseeable to Smith that they
would do so.

2

The jury convicted Smith on the conspiracy charge (as well
as the possession charge) and found that his acts in furtherance
of the conspiracy and the reasonably foreseeable acts of others
made him responsible for 280 grams or more of cocaine base and
500 grams or more of cocaine.
Smith filed a post-trial motion for acquittal or for a new
trial challenging the sufficiency of the evidence as to the
amount of cocaine base attributable to him under the conspiracy
count.

See Motion for Acquittal, United States v. Smith, 3:12-

cr-105 (D. Conn.) (ECF No. 1152).

The motion was denied and

Smith was sentenced to ten years’ imprisonment, the mandatory
minimum required by the jury’s verdict.

See 21 U.S.C. §

841(b)(1)(A) (ten-year mandatory minimum for 280 grams or more of
cocaine base).
Smith appealed both his conviction and sentence.

He was

represented on appeal by the same counsel who represented him at
trial.

He claimed that a motion to suppress wiretap evidence

should have been granted.

He also claimed that his motions for

acquittal based on the insufficiency of the evidence should have
been granted.

App.’s Brief at 26-33, United States v. Smith, No.

14-2801 (2d Cir.) (ECF No. 27).

Though his main brief limited

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the insufficiency claim to the government’s proof of drug
quantity, id., his reply brief included a broader argument
contesting the sufficiency of the evidence to prove that he
engaged in a conspiracy involving any quantity.

See App.’s Reply

at 3-14, id. (ECF No. 51).
The Court of Appeals affirmed.
F. App’x 57 (2d Cir. 2015).

United States v. Smith, 629

The Court expressly rejected Smith’s

argument that the evidence is insufficient to support the jury’s
verdict regarding drug quantity.

Id. at 58-59.

At the

conclusion of the opinion, the Court stated, “[w]e have
considered all of Smith’s arguments and find them to be without
merit.”

Id. at 60.

Smith claims that he asked his counsel to file a petition
for rehearing en banc and a petition for a writ of certiorari but
his counsel failed to comply with his requests.

He filed a pro

se petition for a writ of certiorari, which was denied.

Smith v.

United States, 136 S. Ct. 1684 (Apr. 18, 2016).
II. Legal Standards
To obtain relief under § 2255, a petitioner must show that
his “sentence was imposed in violation of the Constitution or
laws of the United States.”

28 U.S.C. § 2255.

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A claim is

cognizable under § 2255 if it involves a “fundamental defect
which inherently results in a complete miscarriage of justice.”
Davis v. Hill, 417 U.S. 333, 346 (1974) (quoting Hill v. United
States, 368 U.S. 424, 428 (1962)).

Pursuant to the “mandate

rule,” a § 2255 motion generally does not provide an opportunity
to relitigate issues that were raised and considered on direct
appeal. Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.
2010). The mandate rule also “precludes re-litigation of issues
impliedly resolved by the appellate court's mandate.”

Id.

(citing United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir.
2001)).

In addition, if a petitioner failed to raise a claim

that was ripe for review on direct appeal, the claim is
procedurally barred unless he “establishes (1) cause for the
procedural default and ensuing prejudice or (2) actual
innocence.”

United States v. Thorn, 659 F.3d 227, 231 (2d Cir.

2011).
III. Discussion
Smith claims that (1) the government presented insufficient
evidence to convict him on the conspiracy count; (2) the
government knowingly presented perjured testimony by an
investigative officer; (3) he was denied his right to confront
witnesses against him when the government and his counsel failed

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to call an investigative officer;1 and (4) his trial and
appellate counsel provided ineffective assistance.

These claims

are unavailing for the reasons set forth below.
A. Insufficient Evidence
Smith claims that the evidence is insufficient to support
the conspiracy conviction.

As just mentioned, Smith made this

argument to the Court of Appeals in his reply brief.

The Court’s

opinion can be interpreted to include an express rejection of the
claim.

See Smith, 629 F. App’x at 59 (“Given the evidence

presented to the jury, the argument that the evidence was
insufficient to show that Smith conspired to distribute 280 grams
of cocaine base and 500 grams of cocaine is not persuasive.”
(emphasis added)).

At a minimum, the issue was impliedly

resolved against Smith.
To determine whether an issue has been impliedly resolved,
courts “look to both the specific dictates of the remand order as
well as the broader spirit of the mandate.”
95.

Ben Zvi, 242 F.3d at

The mandate rule bars relitigation when “the factual

predicates of [different] claims, while not explicitly rejected
1

It is not clear from Smith’s submissions whether his
Confrontation Clause argument asserts a separate claim or is
part of his ineffective assistance claim. Given Smith’s pro se
status, his submissions are construed to include two separate
claims.

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on direct appeal, were nonetheless impliedly rejected by the
appellate court mandate.”

Yick Man Mui, 614 F.3d at 53.

Here, the Court expressly rejected Smith’s argument that the
evidence is insufficient to support the jury’s verdict regarding
drug quantity.

The Court’s ruling impliedly rejected Smith’s

argument that the evidence is insufficient to prove his
involvement in a conspiracy involving any quantity.

Smith could

not be held accountable for 280 grams of cocaine base and 500
grams of cocaine unless the evidence established that those
quantities were distributed by him or others in furtherance of
the conspiracy.
If the Court of Appeals did not resolve Smith’s
insufficiency claim, the claim is barred because he failed to
properly raise it on appeal and has not shown cause and prejudice
to excuse the procedural default.2

Demonstrating “cause”

requires a showing that “some objective factor external to the
defense impeded counsel’s efforts” to raise the claim. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).

Smith offers no explanation

for why the insufficiency claim concerning the conspiracy
2

Because Smith merely disputes the legal sufficiency of the
evidence against him, he has not established an actual innocence
claim that would excuse the procedural default. See Bousley v.
United States, 523 U.S. 614, 623 (1998) (“‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.”).

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conviction was not raised in his main brief on appeal.
he explain how the omission prejudiced him.

Nor does

Instead, he merely

repeats his argument that the evidence is insufficient.

See

Pet.’s Reply at 3 (ECF No. 7) (“[T]he insufficient evidence is
the cause and prejudice of this verdict.”).3
Putting aside the mandate rule and Smith’s procedural
default, Smith’s challenge to the sufficiency of the evidence
supporting the conspiracy conviction is unavailing on the merits.
Smith contends that the evidence proves nothing more than a
seller-buyer relationship between him and his buyers.

As the

government has demonstrated, however, the evidence proves that
Smith shared an interest with his buyers in furthering resales,
which is sufficient to support the conspiracy conviction.

See

Gov’t Resp. at 20-33 (ECF No. 6) (discussing intercepted wire
communications and physical surveillance showing an ongoing
relationship between Smith and his buyer-distributors, including
the use of coded language, sales on credit, assistance in
3

Smith does suggest that his counsel was ineffective in failing
to preserve this claim. See Pet.’s Motion at 27 (ECF No. 1).
Such a showing could excuse the procedural default. United States
v. Perez, 129 F.3d 255, 261 (2d Cir. 1997) (“A defendant may
raise [defaulted] claims where the issues were not raised at all
on direct appeal due to ineffective assistance of counsel.”
(quotation omitted)). But Smith fails to elaborate on this claim
and, as discussed below, he has not shown that his counsel
rendered ineffective assistance.

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preparing drugs, and discussions about lower-level personnel);
see also United States v. Parker, 554 F.3d 230, 235 (2d Cir.
2009) (“[I]f the evidence supports a finding that the seller
shared with the buyer an interest in furthering resale by the
buyer, the seller and buyer may be found to be in a
conspiratorial agreement to further the buyer’s resales.”).
B. Perjured Testimony
Smith claims that the government introduced perjured
testimony in violation of his due process rights.

Due process is

violated when the government “knowingly uses false evidence,
including false testimony, to obtain a tainted conviction.”
Napue v. People of State of Illinois, 360 U.S. 264, 269 (1959).
Smith did not raise this claim on appeal.

The government has not

raised the procedural default, however, so I address the merits
of the claim.
The testimony at issue was given by Officer David Rivera,
who arrested one of Smith’s co-defendants, Tyrell Gary, following
a traffic stop.

See Tr. Transcript at Vol. III, 572-80.

Prior

to the stop, Gary texted Smith asking for a quantity of cocaine
and subsequently met with Smith.

Officers investigating Smith

were aware of these facts as a result of a wiretap and
surveillance.

When Gary drove away after his meeting with Smith,

Rivera followed in a marked police cruiser and initiated a
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traffic stop.

Gary fled and tossed “white chunks” from his car

before he was eventually stopped by Rivera.

Laboratory analysis

confirmed that the “white chunks” contained cocaine.
Rivera testified that after the traffic stop, he created two
reports: one for the Drug Enforcement Administration (“DEA”) and
one for the New Haven Police Department (“NHPD”).

The DEA report

accurately describes the details of the drug enforcement
operation, including the wire intercepts and surveillance that
led to the stop, but the NHPD report states that Rivera was
engaged in “motor vehicle enforcement” at the time.

Rivera

testified that he did not want the NHPD report to reveal the
wiretap investigation, which was ongoing.

On cross examination,

he acknowledged that the NHPD report’s statement about conducting
“motor vehicle enforcement” was false.

Smith’s counsel also

asked him about a statement in the report that a field test
confirmed the presence of “crack cocaine.”

While the field test

could detect cocaine, it could not distinguish between crack
cocaine and cocaine powder.

Rivera stated that he wrote “crack

cocaine” based on his knowledge of the appearance of crack
cocaine.
Smith seems to suggest that the entries in the NHPD report
just discussed support a perjury claim.

However, Rivera

explained why he wrote the entries and there is no claim that his
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explanation is false.

Moreover, a habeas petitioner cannot

prevail on a perjury claim unless (1) the prosecution knew, or
should have known, of the perjury and (2) there is a reasonable
likelihood the perjury affected the judgment of the jury.
v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003).
requirement is met in this case.

Drake

Neither

Smith has not identified any

testimony that the government knew or should have known was
false.

Nor has he shown that any such testimony tainted the

verdict.
C. Confrontation Clause
Smith claims that the admission of certain physical evidence
violated his Sixth Amendment right to confront witnesses against
him.

As with the perjury claim, he did not present this claim on

appeal but the government has not raised his procedural default
so I address the merits of the claim.
Smith’s claim involves 6.6 grams of cocaine that he sold to
a confidential witness (“CW”).

The CW was driven to the

transaction by undercover Officer Dedric Jones.

Officer Rivera

and Special Agent Erik Ndrenkia provided surveillance.

Ndrenkia

testified that he saw the CW engage in the transaction then
return to the vehicle operated by Jones.
III, at 279-81, 305-13.

See Tr. Transcript Vol.

Rivera testified that they then followed

Jones’s car to a prearranged location.
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See Tr. Transcript Vol.

III, at 546-54.

After a pat-down search and debriefing, the CW

left and the officers drove back to their office.

At the office,

Jones “relinquished” the cocaine to Rivera, and Rivera processed
it as an exhibit.

Jones did not testify at the trial.

“The Confrontation Clause prohibits admission at trial of
out-of-court testimonial statements against a criminal defendant
unless the declarant is unavailable and the defendant had a prior
opportunity to cross-examine him.”

Washington v. Griffin, 876

F.3d 395, 403-04 (2d Cir. 2017) (citing Crawford v. Washington,
541 U.S. 36, 68 (2004)).

Smith has not identified any out-of-

court testimonial statements that were admitted into evidence.
His claim seems to be predicated on the admission of the cocaine
in the absence of testimony by Jones.

But the evidence does not

include a testimonial statement by Jones concerning the cocaine
that would implicate the Confrontation Clause.4
D. Ineffective Assistance of Counsel
Smith claims that, for various reasons, he received
ineffective assistance of counsel in violation of the Sixth
Amendment.

None of his arguments provides a basis for relief.

4

Compare Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)
(sworn and notarized lab report affirming that sample was
determined to be cocaine is testimonial statement), with Williams
v. Illinois, 567 U.S. 50, 72-75 (2012) (state DNA expert may
testify regarding informal notations made by third party lab
technicians despite lack of personal knowledge about testing and
no testimony by technicians).
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To obtain relief on an ineffective assistance of counsel
claim, Smith must demonstrate that (1) his counsel's performance
fell below an objective standard of reasonableness and (2) he
suffered prejudice as a result.
U.S. 668, 694 (1984).

Strickland v. Washington, 466

To show that his counsel’s performance was

constitutionally deficient, Smith must overcome the “strong
presumption” that his counsel’s “conduct falls within the wide
range of professionally competent assistance.”

Id. at 689.

To

show prejudice, he “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. at 694.

Smith argues that his counsel was ineffective in failing to
call Jones as a witness at trial.

He claims that Jones’s

testimony would have “confirmed the fact that Mr. Smith did not
participate in the actual transaction of the 6.6 grams.”
According to Smith, “it is highly likely that Officer Jones would
have testified that he did not actually search the female CW, who
allegedly bought the drugs from Mr. Smith and Officer Jones did
not know where those 6.6 grams of cocaine base came from.”
That Jones was not called to testify does not provide a
basis for an ineffective assistance claim.

“[T]he tactical

decision of whether to call specific witnesses — even ones that
might offer exculpatory evidence — is ordinarily not viewed as a
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lapse in professional representation.”
105 F.3d 82, 90 (2d Cir. 1997).

United States v. Schmidt,

Smith’s assertions regarding

what Jones would have said if called as a witness are speculative
and belied by the testimony of the other officers who were
involved in the controlled purchase.

See Jordan v. United

States, 190 F. Supp. 3d 331, 337 (W.D.N.Y. 2016) (“[I]neffective
assistance of counsel claims based on the failure to call
witnesses are disfavored precisely because allegations of what a
witness would have testified are largely speculative.” (quotation
omitted)).

Smith’s counsel could reasonably think that Jones’s

testimony would be consistent with the testimony of the other
officers.

Smith offers no evidence to the contrary.

Moreover,

Smith’s bare assertion that Jones would have provided exculpatory
evidence does not establish a reasonable probability that the
outcome of his trial would have been different.
Smith also claims that his counsel was ineffective for
failing to file a petition for rehearing and a writ of certiorari
as he requested.

It is unreasonable for a lawyer to disregard a

defendant’s specific instructions to file a notice of appeal
because the failure to do so “deprives the defendant of his right
to a direct appeal whatever the merits of the appeal.”
United States, 278 F.3d 134, 137 (2d Cir. 2002).

But this rule

does not extend to petitions for rehearing or writs of
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Garcia v.

certiorari.

See Pena v. United States, 534 F.3d 92, 95 (2d Cir.

2008) (denying ineffective assistance claim regarding writ of
certiorari); United States v. Smith, No. 1:04-cr-93-jgm-2, 2011
WL 1211561, at *7 (D. Vt. Mar. 29, 2011) (denying ineffective
assistance claim regarding rehearing en banc).
Smith also suggests that his counsel was ineffective in
failing to “preserve his legal sufficiency and Confrontation
Clause claims.”5

He does not explain how his counsel’s failure

to preserve the claims constituted deficient performance or
prejudiced his defense and it is apparent that he cannot satisfy
either requirement.
With regard to the “legal sufficiency” claim, Smith’s
position appears to be that his counsel was ineffective in
failing to appeal on the ground that the evidence is insufficient
to support the conspiracy conviction.
evidence is sufficient.

As discussed above, the

Even assuming Smith’s counsel could make

a non-frivolous argument that the evidence is insufficient,
failure to raise the argument in the main brief did not
constitute deficient performance.

Moreover, there is no

reasonable probability that if the argument had been raised in

5

Smith also suggests that his counsel should have requested a
“circumstantial evidence” charge to the jury. But the jury was
given instructions on circumstantial evidence and Smith does not
identify any error in the instructions.
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the main brief the outcome of the appeal would have been
different.
IV. Certificate of Appealability
In a proceeding under § 2255, a certificate of appealability
may issue “only if the applicant has made a substantial showing
of a denial of a constitutional right.”
2253(c)(2).

See 28 U.S.C. §

Under this standard, a certificate of appealability

will not issue unless jurists of reason could debate whether the
petition should have been resolved in a different manner or the
issues are adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Petitioner has not

made this showing, so a certificate of appealability will not
issue.
IV.

Conclusion
Accordingly, petitioner's § 2255 motion is hereby denied.

The Court declines to issue a certificate of appealability.

The

Clerk will enter judgment dismissing the action.
So ordered this 7th day of February 2018.
/s/RNC
Robert N. Chatigny
United States District Judge

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