Smith v. USA

Filing 24

ORDER DENYING 1 28 U.S.C. Section 2255 petition and DISMISSING CASE with prejudice. The Court also GRANTS 22 MOTION to Withdraw as Attorney. Further, the Court DECLINES to issue a certificate of appealability. The Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 6/8/17. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HAKEEM L. SMITH,
Petitioner,
vs.

Case No. 15-CV-807-DRH

UNITED STATES OF AMERICA
Respondent.
ORDER
HERNDON, District Judge:
On July 27, 2015, petitioner Hakeem Smith filed a motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). In his § 2255 motion,
Smith challenges his designation and sentence as a career offender under § § 4B1.1
and 4B1.2 of the United States Sentencing Guidelines based on Johnson v. United

States, 135 S.Ct. 2551 (2015).
The Court directed the government to file a response that same day (Doc. 2).
Thereafter, the government filed its response (Doc. 7) and Smith filed a reply
(Doc. 9). On May 26, 2016, the Court, after reviewing the pleadings, and pursuant to
Administrative Order 176, referred the case to the Federal Public Defender (Doc.
14). Thereafter, the Federal Public Defender moved to stay this case pending a
decision by the United States Supreme Court in Beckles v. United States, 616
Fed.Appx 415 (11th Cir. 2015), cert. granted, --- U.S. ---, 136 S.Ct. 2510, ---L.E.2d -- (2016) (Doc. 16), which the Court granted (Doc. 17). On March 6, 2017, the
Supreme Court issued its decision in Beckles v. United States, 137 S.Ct. 866 (2017)

(holding broadly that advisory sentencing guidelines are not subject to vagueness
challenges under the Due Process Clause, and thus, the reasoning of Johnson does
not extend to § 4B1.2’s residual clause).
In light of Beckles, the government filed a notice indicating that Beckles is
dispositive of petitioner’s request for relief (Doc. 18). Thereafter the Court directed
the petitioner to show cause why the Court should not deny petitioner’s § 2255
petition and dismiss the case. Subsequent to the Court’s show cause order, the
Federal Public Defender moved to withdraw as counsel stating that “Petitioner’s
claim relies on an argument that § 4B1.2(a)(2)’s residual clause no longer applies to
his case based upon Johnson. The Beckles decision forecloses any colorable claim
for relief based upon Johnson.” (Doc. 22). The Court, again, entered a show cause
order directing petitioner to show cause—no later than May 18, 2017— why the
undersigned should not grant the Assistant FPD's motion to withdraw and deny
Defendant's pro se § 2255 petition (Doc. 23). Smith failed to respond.

Clearly,

Beckles precludes Smith’s § 2255 petition and there is no basis to vacate or correct
Smith’s sentence.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, this Court
denies a certificate of appealability in this case. “A certificate of appealability should
issue only when the prisoner shows both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This
court concludes that jurists of reason would not find it debatable whether

petitioner’s motion states a valid claim of the denial of a constitutional right and also
concludes that jurists of reason would not find it debatable whether this Court
correctly dismissed with petitioner’s motion based on Beckles.
Accordingly, the Court DENIES and DISMISSES with prejudice Smith’s
28 U.S.C. § 2255 motion (Doc. 1). Further, the Court DECLINES to issue a
certificate of appealability. The Court DIRECTS the Clerk of the Court to enter
judgment in favor of the United States of America and against Hakeem L. Smith.
IT IS SO ORDERED.
Signed this 8th day of June, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.06.08
15:49:40 -05'00'
United States District Judge