Smith v. United States of America

Filing 2

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Smith's 1 Motion to Vacate/Set Aside/Correct Sentence (2255), CLOSE this case, and DENY Smith a Certificate of Appealability and leave to proceed in forma pauperis on appeal. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/8/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/25/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

TIMOTHY T. SMITH,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-57

v.
UNITED STATES OF AMERICA,

(Case No.: 5:99-cr-4)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Timothy Smith (“Smith”), who is currently housed at the Coleman Correctional Complex
in Coleman, Florida, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255. (Doc. 1.) For the reasons which follow, I RECOMMEND the Court DISMISS
Smith’s Motion, CLOSE this case, and DENY Smith a Certificate of Appealability and leave to
proceed in forma pauperis on appeal.
BACKGROUND
Smith was convicted in this Court, after entry of a guilty plea, of possession with intent to
distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). Smith was sentenced
to 262 months’ imprisonment. J., United States v. Smith, 5:99-cr-4 (S.D. Ga. Dec. 22, 1999),
ECF No. 63. Smith did not file a direct appeal.
Smith filed a Section 2255 motion in December 2000. He alleged his guilty plea was not
knowingly and voluntarily made, his counsel was ineffective, he could not appeal this Court’s
sentence enhancement, and that his state court convictions, which were used to enhance his
sentence, were constitutionally infirm. Mot., United States v. Smith, 5:99-cr-4 (S.D. Ga. Dec.

19, 2000), ECF No. 70. This Court dismissed Smith’s Motion. R. & R. and Order, United States
v. Smith, 5:99-cr-4 (S.D. Ga. July 12 and Aug. 6, 2001), ECF Nos. 78, 80. Smith filed several
motions for modification of sentence, and the Court denied his motions. Orders, United States v.
Smith, 5:99-cr-4 (S.D. Ga. Mar. 12, 2003, June 23, 2008, Jan. 1, 2012, and July 9, 2015), ECF
Nos. 88, 103, 122, 136.
DISCUSSION
In his current Motion, his second Section 2255 motion, Smith seeks a reduction in his
sentence based on the United States Sentencing Commission’s recent amendment to the “minor
role” Sentencing Guideline, which he claims is retroactively applicable because it is a clarifying
amendment. Smith cites to United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016).
(Doc. 1.)
I.

Whether Smith can Proceed in this Court Pursuant to Section 2255
To file a second or successive Section 2255 motion, the movant is required to first file an

application with the appropriate court of appeals for an order authorizing the district court to
consider the motion. 28 U.S.C. § 2244(b)(3)(A); Farris v. United States, 333 F.3d 1211, 1216
(11th Cir. 2003). A panel of the court of appeals must certify that the second or successive
motion contains:
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h); In re Anderson, 396 F.3d 1336, 1337 (11th Cir. 2005).

“Without

authorization” from the court of appeals, a “district court lack[s] jurisdiction to consider [a

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movant’s] second or successive” motion. Carter v. United States, 405 F. App’x 409, 410 (11th
Cir. 2010).
Smith did not receive prior authorization from the Eleventh Circuit Court of Appeals
which would permit this Court to exercise jurisdiction over this Section 2255 Motion. United
States v. Florence, 411 F. App’x 230, 231 (11th Cir. 2011) (absent authorization to file a second
or successive Section 2255 motion, a district court lacks subject-matter jurisdiction to consider
the claims raised in the motion). 1 As noted above, Smith previously filed a Section 2255 motion
in this Court, which was dismissed.
The crux of Smith’s assertion here is that he is entitled to a sentence reduction based on a
retroactively applicable amendment to the United States Sentencing Guidelines, and he bases his
assertion on a case arising out of the Ninth Circuit Court of Appeals. However, as this Court has
recently noted, “Amendment 794 merely ‘clarified the factors to consider for a minor-role
adjustment’ –– it did not substantively change § 3B1.2.” Jacobs v. United States, No. CR414343, 2016 WL 4183312, at *1 (S.D. Ga. Aug. 5, 2016) (quoting United States v. Gasas, 632 F.
App’x 1003, 1004 (11th Cir. 2015)); see also United States v. Quintero-Leyva, 823 F.3d 519,
523 (9th Cir. 2016). “The threshold inquiry,” therefore, “is whether [Smith’s] claim that his
sentence is contrary to a subsequently enacted clarifying amendment is cognizable under
§ 2255.” Burke v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998). As noted above, Smith
has already filed a Section 2255 motion in this Court. Thus, Smith must seek permission from
the Eleventh Circuit before he files a second or successive Section 2255 motion in this Court,
even if his desired relief is available.

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The Court recognizes that “[t]here is, however, a small subset of claims that are not categorized as
‘second or successive’—i.e., where the basis for the second habeas claim arose after the conclusion of the
previous petition.” Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011). Smith’s claims do not
fall within this narrow exception.

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The Court notes that the Ninth Circuit determined Amendment 794 applies retroactively
in direct appeals and not collateral challenges to sentences, such as the Section 2255 Motion
Smith has filed here. Quintero-Leyva, 823 F.3d at 520. It does not appear that the Eleventh
Circuit Court of Appeals, whose precedents guide this Court, recognizes Amendment 794 as
being applicable to cases on collateral review. 2 See Gasas, 632 F. App’x at 1005.
For these reasons, I RECOMMEND the Court DISMISS Smith’s Section 2255 Motion
as being an unauthorized second or successive motion.
II.

Leave to Appeal In Forma Pauperis and Certificate of Appealability
The Court should also deny Smith leave to appeal in forma pauperis. Though Smith has,

of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the
Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is
filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous and, thus, not brought in good faith, if it is “without arguable merit either in law or

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It does not appear, even if Amendment 794 were retroactively applicable to cases on collateral review,
Smith would be entitled to his requested relief. Smith was sentenced under the career offender provision
of the Sentencing Guidelines, and his role as a minor participant was noted specifically. J., United States
v. Smith, 5:99-cr-4 (S.D. Ga. Dec. 12, 1999), ECF No. 63, p. 7.

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fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Smith’s Motion and applying the Certificate of
Appealability standards set forth above, there are no discernable issues worthy of a certificate of
appeal; therefore, the Court should DENY the issuance of a Certificate of Appealability. If the
Court adopts this recommendation and denies Smith a Certificate of Appealability, Smith is
advised that he “may not appeal the denial but may seek a certificate from the court of appeals
under Federal Rule of Appellate Procedure 22.” Rule 11(a), Rules Governing Section 2255

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Cases in the United States District Courts. Furthermore, as there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. Thus, the Court should likewise
DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Smith’s Motion,
CLOSE this case, DENY Smith in forma pauperis status on appeal, and DENY Smith a
Certificate of Appealability.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Smith.
SO ORDERED and REPORTED and RECOMMENDED, this 25th day of August,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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