Smith v. USA
OPINION AND ORDER: The Court DENIES the Motion to Reconsider Denial of Claims 4 Filed Under 28 U.S.C. § 2255. Signed by Judge Joseph S Van Bokkelen on 1/8/2021. (Copy mailed to pro se party)(shk)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA
GARRETT DAVARRASS SMITH,
CAUSE NO.: 2:11-CR-140-JVB-PRC
OPINION AND ORDER
This matter is before the Court on a Motion to Reconsider Denial of Claims Filed Under
28 U.S.C. § 2255 [DE 96], filed by Defendant Garrett Davarrass Smith, pro se.
On April 6, 2012, Smith pled guilty to a charge of possession of cocaine with attempt to
distribute. The presentence report classified Smith as a career offender under the residual clause
of the sentencing guidelines, because he had at least two prior felony convictions of either a crime
of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). The Court adopted the
classification in the report and sentenced Smith as a career offender.
On November 30, 2015, Smith filed a petition under § 2255 based on the Supreme Court’s
decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which ruled that increasing a sentence
under the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
violates the Due Process Clause. Smith argued that because the residual clause of U.S.S.G §
4B1.1(a)(2) uses the same language as the stricken residual clause in ACCA, he no longer qualifies
as a career offender, so his sentence violates his due process rights. Smith then filed an
“amendment” to his petition, arguing ineffective assistance of counsel because his attorney failed
to object to the career offender designation at the sentencing hearing.
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The Court denied Smith’s motion and declined to certify any issue for appeal. Rejecting
Smith’s due process argument, the Court cited Beckles v. United States, 137 S. Ct. 886 (2017),
which held that the Sentencing Guidelines are not subject to a vagueness challenge, and therefore
Johnson’s holding did not affect the identically worded clause in the Sentencing Guidelines. The
Court also noted that, because Smith’s sentence did not exceed the statutory maximum, Smith
could not challenge a guidelines calculation in a section 2255 petition. Finally, the Court found
that because Smith’s claims did not arise under Johnson, the claims were untimely because they
were not raised within the one-year limitation period. Although Smith signed a plea agreement
waiving his right to a collateral attack on his sentence, the Court made no finding as to that waiver,
because the motion was denied on other grounds.
Johnson now files a “motion for reconsideration,” arguing that his claims were not timebarred and that he should not have been classified as a career offender.
It is not apparent that Smith’s motion is permissible, because it could be considered a
second collateral attack, which he has not been permitted to file. See 28 U.S.C. § 2255(h); Harris
v. Cotton, 296 F.3d 578, 579 (7th Cir. 2002) (“Prisoners are not allowed to avoid the restrictions
that Congress has placed on collateral attacks on their convictions or other custody-creating orenhancing punishments by styling their collateral attacks as motions for reconsideration.”).
Nonetheless, the Court addresses the arguments in the motion.
Smith argues for the first time that his original motion was timely because the Supreme
Court denied his petition for certiorari on December 1, 2014, and the motion was filed on
November 30, 2015. See Smith v. United States, 135 S.Ct. 732 (2014). Because the petition was
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filed within one year of the denial of certiorari, the original motion was timely. See 28 U.S.C. §
Nonetheless, Smith waived the right to appeal his sentence in his plea agreement.
Specifically, he agreed:
I expressly waive my right to appeal or to contest my conviction and my sentence
or the manner in which my conviction or my sentence was determined or imposed,
to any Court on any ground, including any claim of ineffective assistance of counsel
unless the claimed ineffective assistance of counsel relates directly to this waiver
or its negotiation, including any appeal under Title 18, United States Code, Section
3742 or any post-conviction proceeding, including but not limited to, a proceeding
under Title 28, United States Code, Section 2255.
Plea Agreement [DE 15] at 5 (Paragraph 7(i)). In denying Smith’s direct appeal of his
sentence, the Seventh Circuit Court of Appeals considered Smith’s waiver at length. The Seventh
Circuit held that the waiver was valid and foreclosed any right to appeal or contest the sentence,
other than a claim of ineffectiveness of counsel relating to the waiver itself. United States v. Smith,
759 F.3d 702, 706-07 (7th Cir. 2014). Nothing in Smith’s § 2255 motion or his motion for
reconsideration supports any other conclusion. Accordingly, there is no basis to reconsider the
Court’s previous order.
For these reasons, the Court DENIES the Motion to Reconsider Denial of Claims Filed
Under 28 U.S.C. § 2255 [DE 96].
SO ORDERED on January 8, 2021.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT
Garrett Davarrass Smith, pro se
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