Smith v. USA

Filing 12

MEMORANDUM DECISION AND ORDER denying and dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255); finding as moot 10 Motion Requesting Disposition of 28 U.S.C. 2255 and 11 MOTION to move this Honorable Court to move Forward on Movant's 28 USC 2255 Motion. No certificate of appealability shall issue. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Plaintiff-Respondent

Case No. 1:13-cv-00145-BLW
1:11-cr-00027-BLW
MEMORANDUM DECISION AND
ORDER

v.
AMANDA LYNN SMITH,
Defendant-Movant.

INTRODUCTION
Pending before the Court is Amanda Lynn Smith’s (“Smith”) Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Dkt. 1) (Crim. Dkt. 166).
Having reviewed the Motion and the underlying record, the Court enters the following
Order denying the Motion and finding her Motion Requesting Disposition of 28 U.S.C.
2255 (Civ. Dkt. 10) and Motion to Move This Honorable Court to Move Forward (Civ.
Dkt. 11) moot.
BACKGROUND
Smith pleaded guilty to conspiracy to distribute 500 grams or more of a mixture
and substance containing methamphetamine in exchange for dismissal of a charge of
distributing 50 grams or more of a mixture and substance containing methamphetamine.
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Amended Rule 11 Plea Agreement, Crim. Dkt. 104; Minutes, Crim. Dkt. 106. Pursuant to
the Report and Recommendation of United States Magistrate Ronald E. Bush, this Court
accepted her plea. Report and Recommendation, Crim. Dkt. 107; Order Adopting Report
and Recommendation, Crim. Dkt. 114. On October 17, 2011, the Court imposed a
below-guideline sentence of 240 months (based on a guideline range of 324-405 months)
to be followed by five years of supervised release, and Judgment was entered on October
18, 2011. Sentencing Minutes, Crim. Dkt. 147; Judgment, Crim. Dkt. 148. Smith did not
appeal her sentence or conviction. On March 19, 2013, Smith filed the pending § 2255
Motion.
STANDARD OF LAW
Title 28 U.S.C. § 2255 provides four grounds under which a federal court may
grant relief to a federal prisoner who challenges the imposition or length of his or her
incarceration: (1) “that the sentence was imposed in violation of the Constitution or laws
of the United States;” (2) “that the court was without jurisdiction to impose such
sentence;” (3) “that the sentence was in excess of the maximum authorized by law;” and
(4) that the sentence is otherwise “subject to collateral attack.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal
district court judge must dismiss a § 2255 motion “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.” In order to proceed on a § 2255 motion, the movant must make
“specific factual allegations that, if true, state a claim on which relief could be granted.”
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United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citation omitted)
(emphasis added). “Under this standard, a district court may summarily dismiss a § 2255
motion only if the allegations in the motion, when viewed against the record, do not give
rise to a claim for relief or are ‘palpably incredible or patently frivolous.’” United States
v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011) (citation omitted).

A § 2255 motion must be brought within one year of the latest of the
following possible dates:
(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).
Where a movant unsuccessfully appeals his conviction or sentence but does not
file a petition for writ of certiorari with the United States Supreme Court, the conviction
becomes final at the expiration of the time for filing such a petition. United States v.
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Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015) (citations omitted). Where a movant does
not appeal, the conviction becomes final at the expiration of the time for filing a direct
appeal pursuant to Rule 4 of the Federal Rules of Appellate Procedure. Id. Rule 4
requires that defendant in a criminal case file a notice of appeal within fourteen (14) days
of entry of judgment. Fed. R. App. P. 4(b)(1)(A)(i).
DISCUSSION
In her Motion, Smith alleges, based on Missouri v. Frye, 132 S.Ct. 1399 (2012)
and Lafler v. Cooper, 132 S.Ct. 1376 (2012), that defense counsel provided
constitutionally deficient representation regarding the nature and consequences of her
guilty plea that induced her to plead guilty rather than to proceed to trial. More
specifically, Smith alleges that counsel advised her, among other things, that she would
receive a sentence of less than ten years based on her mental condition if she pleaded
guilty. § 2255 Motion at 10. She further alleges that “there is a reasonable possibility
that she would have proceeded to a jury trial if she had known that she was facing a 240
month sentence.” § 2255 Motion at 11. Claiming that she received no benefit or
advantage under the Plea Agreement, Smith requests that she “be allowed to plea anew.”
§ 2255 Motion at 15-16.
In its Response, the Government urges dismissal of the § 2255 Motion on the
grounds that it is untimely, that Smith waived her right to file it, and that counsel’s
performance was not deficient. Response, Civ. Dkt. 7. In her Reply, Smith claims that
her § 2255 Motion is timely based on 28 U.S.C. § 2255(f)(3), that her waiver was not
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applicable because Frye and Lafler were not available until March 21, 2012, that she
based her decision to plead guilty based on counsel’s erroneous advice, and that she has
made specific factual allegations that if true would entitle her to relief thus entitling her to
an evidentiary hearing. Reply, Civ. Dkt. 8.
As stated above, Judgment was entered against Smith on October 18, 2011, and
Smith did not appeal that Judgment. Therefore, her conviction became final fourteen
(14) days later on November 1, 2011, and the deadline for filing a ' 2255 motion became
November 1, 2012. Smith, however, did not file her ' 2255 Motion until March 19,
2013, over four months after the deadline had passed. Thus, her § 2255 Motion was
untimely pursuant to 28 U.S.C. § 2255(f)(1).
Apparently recognizing its untimeliness under that subsection, Smith argues the
applicability of § 2255(f)(3) based on Frye and Lafler. This argument fails. The Ninth
Circuit has held that neither Supreme Court case decided a new rule of constitutional law
but rather “merely applied the Sixth Amendment right to effective assistance of counsel
according to the test articulated in [Strickland] and established in the plea-bargaining
context in [Hill].” United States v. Buenrostro, 697 F.3d 1137, 1140 (9th Cir. 2012)
(citations omitted). Furthermore, neither Frye not Lafler is applicable to Smith’s
circumstances. Frye involved a lapsed plea offer that had not been communicated to the
defendant. Lafler involved a claim of ineffective assistance of counsel that resulted in
rejection of a plea offer and subsequent conviction at trial. Defense counsel did not fail

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to communicate a plea offer to Smith. Nor did Smith did reject a plea offer and proceed
to conviction at trial.
CONCLUSION
Smith’s § 2255 Motion is untimely under both 28 U.S.C. § 2255(f)(1) and
§ 2255(f)(3) and thus subject to dismissal. Accordingly, the Court need not address
Smith’s substantive claims or the Government’s waiver defense.
CERTIFICATE OF APPEALABILITY
A § 2255 movant cannot appeal from the denial or dismissal of his § 2255 motion
unless he has first obtained a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b). A certificate of appealability will issue only when a movant has made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
satisfy this standard when the court has dismissed a § 2255 motion (or claims within a
§ 2255 motion) on procedural grounds, the movant must show that reasonable jurists
would find debatable (1) whether the court was correct in its procedural ruling, and (2)
whether the motion states a valid claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. 473, 484 (2000). When the court has denied a § 2255 motion or
claims within the motion on the merits, the movant must show that reasonable jurists
would find the court’s decision on the merits to be debatable or wrong. Id.; Allen v.
Ornoski, 435 F.3d 946, 951 (9th Cir. 2006).

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After carefully considering the record and the relevant case law, the Court finds
that reasonable jurists would not find the Court’s decision that Smith’s § 2255 Motion
was untimely to be debatable or wrong.
ORDER
IT IS ORDERED:
1.

Amanda Lynn Smith’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Civ. Dkt. 1) is DENIED and DISMISSED
in its entirety.

2.

No certificate of appealability shall issue. Smith is advised that she may
still request a certificate of appealability from the Ninth Circuit Court of
Appeals, pursuant to Federal Rule of Appellate Procedure 22(b) and Local
Ninth Circuit Rule 22-1. To do so, she must file a timely notice of appeal.

3.

If Smith files a timely notice of appeal, and not until such time, the Clerk of
Court shall forward a copy of the notice of appeal, together with this Order,
to the Ninth Circuit Court of Appeals. The district court’s file in this case
is available for review online at www.id.uscourts.gov.

4.

Smith’s Motion Requesting Disposition of 28 U.S.C. 2255 (Civ. Dkt. 10)
and Motion to Move this Honorable Court to Move Forward on Movant’s
28 U.S.C. 2255 Motion (Civ. Dkt. 11) are MOOT.

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DATED: March 22, 2016
_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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