Smalls v. United States of America
Filing
13
ORDER denying 10 Motion to take judicial notice. Signed by Magistrate Judge G. R. Smith on 10/12/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ERIC LAVONNE SMALLS
)
)
V.
)
UNITED STATES OF AMERICA
Case No. CV412-125
CR409-431
)
REPORT AND RECOMMENDATION
Eric Lavonne Smalls moves this Court for 28 U.S.C. § 2255 relief,
challenging his conviction under 18 U.S.C. § 922(g)(1) for possessing a
firearm as a felon. 0R409-431, doe. 54. He contends that he was not a
felon, and that his lawyer was ineffective in failing to point that out. His
§ 2255 motion must be denied.
I. BACKGROUND
Smalls pled guilty topossession of a firearm by a felon, in violation
of 18 U.S.C. § 922(g)(1). Does, 37 & 39; doe. 59 at 41.' During his Fed.
R. Cr. P. 11 guilty plea proceeding, he listened to the government witness
describe the facts supporting his gun charge and, when asked, he did not
' The Court is citing to the e1etronic pagination generated by its docketing software.
It may not always Line up with the original, printed page numbers.
dispute the factual recitation. Doc. 59 at 39-40. Nor did he challenge
the prior felony componeiit of the felon-in-possession charge:
Q. The indictment alleges that Mr. Smalls had a prior felony
conviction of a possession of a controlled substance, cocaine, in case
numbered 99-2088-KA, a violation of the Official Code of Georgia,
16-13-30(b) and (d). Did you find that to be the case, sir?
A. Yes. Your Honor, Il received a certified conviction from the
Superior Court's Clerk's Office here in Chatham County with that
conviction on Mr. Smalls.
Q. Okay. Was that conviction entered on February 1st, 2000 as Mr.
Smalls had related to the Court here; that is, eleven years ago?'
A. Yes, sir.
Q. And was a felony probated sentence imposed, sir?
A. That is correct.
Doe. 59 at 39-40 (footnote added). Smalls was asked if he understood
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Here is the relevant plea-hearing colloquy between the judge and Smalls:
Q. What was the crime you were charged with?
A. Possession.
Q. Possession of drugs?
A. Yes, sir.
Q. Marijuana, cocaine, or what?
A. Of cocaine.
Doe. 89 at 17.
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that testimony. "DEFENDANT: Yes, sir." Id. at 40.
The U.S. Probation Office's presentence investigation report (PSI)
calculated his offense level. PSI ¶11 14-23. His felony-based criminal
history placed him in the 63-78 month advisory guideline range. PSI ¶
46. At sentencing Smalls' lawyer, Gregory N. Crawford, argued against
the four-level specific offense enhancement urged in the PSI because
Smalls committed his firearm offense while in simple possession of drugs,
and not while intending to distribute them. Doe. 47 at 47-48. The
sentencing judge overruled the objection and sentenced Smalls to 65
months. Id. at 55.
Smils unsuccessfully appealed, United States v.
Smalls, 458 F. App'x 788 (11th Cir. 2012).
IL, ANALYSIS
On appeal Smalls did not challenge the felony component of the §
922(g)(1)-based sentence. Now he does, contending that the element of
the § 922(g)(1) crime was missing -- he'd never been convicted of a felony,
only a misdemeanor. Evidently cognizant of procedural default, he raises
an ineffective-assistance claim (lAO) 3 against Crawford, insisting he "was
In evaluating such a claimJ the Court applies Strickland u. Washington, 466 U.S.
3
ineffective when he fai1edto investigate [movant's] prior criminal history
and then allowed him to plead guilty in federal court premised on the
enhancement in which was not a predicate offense for that purpose." Doe.
63 at 8. In his only other: claim, Smalls insist he is "actually innocent" of
the § 922(g)(1) offense (i.e., no predicate felony exists). Doe. 63 at 8.
The government does not raise procedural default, which may be
668, 687 (1984), which created a two-part test for determining whether counsel
performed ineffectively. First, the movant must demonstrate that his attorney's
performance was deficient, which requires a showing that "counsel made errors so
serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth
Amendment." 484 U.S. at 687. Second, the defective performance must have
prejudiced the defense to such a degree that the results of the trial cannot be trusted.
Id.
Under the performance prdng, the reasonableness of an attorney's performance is
to be evaluated from counsel's perspective at the time of the alleged error and in light
of all the circumstances. Id. at 690. It is generally appropriate to look to counsel's
performance throughout the ease in making such a determination. Kimnelman v,
Morrison, 477 U.S. 365, 386 (186). The movant carries a heavy burden, as "reviewing
courts must indulge a strong presumption that counsel's conduct falls within the wide
range of professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy." Id. at 689. Indeed, Smalls must show that '"no competent
counsel would have taken the action that his counsel did take.' "Ford v. Hall, 546 F,3d
1326, 1333 (11th Cir.2008), quoting Chandler u. United States, 218 F.3d 1305, 1315
(11th Cir. 2000) (en banc).
For the prejudice prong he must show that there was a reasonable probability that
the results would have beei different but for counsel's deficient performance.
Kinimelman, 477 U.S. at 375; Strickland, 466 U.S. at 896. "A reasonable probability is
a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S.
at 694; see also Light bourne u. Dugger, 829 F.2d 1012, 1022 (11th Cir.1987); Boykins v.
Wainwright, 787 F.2d 1539,15: 42 (11th Cir.1983).
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overcome by an ineffective assistance claim. Green v, United States, 2012
WL 4468598 at * 3 (S.D. Ga. Sep. 27, 2012) (citing McCleskey v. Zant, 499
U.S. 487, 494 (1991)). Instead, it says both claims are meritless because
Smalls in fact was convicted of a felony in state court. Doe. 60 at 8-11.
The government is correct. The indictment here identified the §
922(g)(1) felony as a conviction for
Possession of a Control'ed Substance (Cocaine), CR99-2088-KA, Vio,
O,C.G.A. § 16-13-30 (b & d), Chatham County Superior Court,
sentenced February 1, 2000, to five (5) years probation
Doe, 1 a 1.
The plea colloquy excerpted above shows that Smalls understood
and agreed that he had p1ed guilty to and thus had been convicted of a
state felony. While he now claims that this offense "was not charged as a
result of a negotiated State Plea Agreement," doe. 54 at 4, the Chatham
County court documents, tendered by the government show that, on
February 28, 2000, Smalls pled guilty to, inter cilia, the unlawful
possession of a controlled substance with intent to distribute (cocaine), in
violation of O.C.G.A. § 16 . 13-30 (b & d). Doe. 60-1 at 2 (CR99-2088-K.A
indictment for violating OCG.A. § 16-13-30(b & d); id. at 11-12 (his guilty
plea to that and other offenses).
Meanwhile, Smalls does not dispute that it is a felony "for any
person to manufacture, deliver,. . . sell or possess with intent to distribute
any controlled substance." O.C.G.A. § 16-13-30(b). Nor does he dispute
that this offense is punishable by "imprisonment for not less than five
years nor more than 30 years." O,C.G.A. § 16-13-30(d). 18 U.S.C. §
922(g), meanwhile, prohibits any person "who has been convicted in any
court of, a crime punishable by imprisonment for a term exceeding one
year" from "possess[ing] :.. any firearm or ammunition." Id. (emphasis
added). So it does not!, matter if Smalls served no "felony-length"
sentence for such a crime,: only that he was convicted and was punishable
by a term exceeding one year. See, e.g., Tidenburg v. United States, 2009
WL 3784603 at * 7 (E.D. Tenn. Nov. 9, 2009) ("Thus, it is irrelevant that
Petitioner only received a; sentence of three years of probation; his crime
could have received a punishment of anywhere from one year to ten years
under Georgia law.").
Smalls attempts to rewrite history here -- the very history that he
affirmed when he pled guilty before this Court. Now he claims that
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"Count II" of the state court charge was "dropped" as part of his guilty
plea there, and he tenders state court records in an attempt to prove this.
That includes the CR99-20988-KA guilty-plea transcript included with his
Reply Brief here, doe. 63-2. But that transcript confirms the
government's position. See doe. 63-2 at 4-5 (prosecutor's recitation of the
plea deal under which Smalls pled to all four counts but received, inter
alia, no prison time, only time-served and probation); see also id. at 6-7
(state trial judge ensuringthat he understood he was pleading guilty to all
of the indicted charges and faced over 30 years on them); id. at 8-9 (he
pled guilty and received his negotiated sentence, including "five years on
probation for possession of controlled substance with intent to distribute.
.").
All that, in turn, renders Smalls' Ground Two (actual innocence)
claim as equally frivolous as his first claim.
IlL CONCLUSION
Eric Lavonne Small' 28 U.S.C. § 2255 motion should be DENIED.
His "judicial notice" motion (doe. 64) is DENIED as frivolous. Applying
the Certificate of Appealability (COA) standards set forth in Brown u.
7
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court
discerns no COA-worthy issues at this stage of the litigation, so no COA
should issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d
895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before
movant filed a notice of appeal). And, as there are no non-frivolous
issues to raise on appeal, an appeal would not be taken in good faith.
Thus, in forma pauperis status on appeal should likewise be DENIED.
28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED this ____day of
October, 2012.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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