Smith v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate (2255) and DECLINES to issue a certificate of appealability. Signed by Judge Robert L Miller, Jr on 3/19/2019. (Copy mailed to pro se party)(rmc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
RODOUNDY SMITH,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent

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CAUSE NO. 3:18-CV-200 RLM
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OPINION and ORDER
A jury found Rodoundy Smith guilty of illegal possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). The court sentenced Mr.
Smith to a term of 24 months’ imprisonment and two years’ supervised release.
Mr. Smith’s appeal was voluntarily dismissed, and he is now before the court
requesting that the court vacate his conviction and sentence under 28 U.S.C. §
2255. [Doc. No. 56]. For the following reasons, the court denies Mr. Smith’s
motion.

I. BACKGROUND
After a used car dealer repossessed a car Mr. Smith recently purchased,
Mr. Smith drove his wife’s car to the dealership, angrily pulled a firearm from his
pocket, and placed it on the counter where the dealership personnel would see
it. He meant to intimidate them into letting him get his repossessed car back. He
didn’t point the gun at anyone or explicitly threaten anyone, and he returned the

gun to his wife’s car when he realized the dealership people were calling the
police. When the police arrived, they found the gun under the driver’s seat of Mr.
Smith’s wife’s car. A Bureau of Alcohol, Tobacco, Firearms, and Explosives task
force officer interviewed Mr. Smith and he eventually confessed to possessing the
firearm. At trial, a Berrien County, Michigan, probation officer testified that Mr.
Smith had a prior felony conviction and the jury convicted Mr. Smith of being a
felon in possession of a firearm.

II. DISCUSSION
Mr. Smith presents two arguments in his petition: that his conviction was
obtained by use of a coerced confession and that he received ineffective
assistance of counsel. The rules governing petitions filed under 28 U.S.C. § 2255
provide that once a motion is filed:
The motion, together with all the files, records, transcripts, and
correspondence relating to the judgment under attack, shall be
examined promptly by the judge to whom it is assigned. If it plainly
appears from the face of the motion and any annexed exhibits and
the prior proceedings in the case that the movant is not entitled to
relief in the district court, the judge shall make an order for its
summary dismissal and cause the movant to be notified.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts. After reviewing the record in this case, the court finds that Mr.
Smith’s motion can be resolved without a hearing. See Bruce v. United States,
256 F.3d 592, 597 (7th Cir. 2001); Daniels v. United States, 54 F.3d 290, 293
(7th Cir. 1995).

Mr. Smith first argues that the court should vacate his conviction because
it was obtained by use of a coerced confession. Mr. Smith argues that he was
tricked and manipulated into providing a false confession. Because Mr. Smith
didn’t move to suppress his statements before trial and didn’t raise this issue on
direct appeal or provide cause for not doing so, the court can’t reach the merits
of his argument.
If Mr. Smith believed that a law enforcement officer obtained his confession
through coercion, he was required to file a motion to suppress before trial. See
Fed. R. Crim. P. 12(b)(3)(c). Because he didn’t file a motion to suppress before
trial, he waived any suppression argument unless he can show good cause. Fed.
R. Crim. P. 12(c)(3); United States v. Cardena, 842 F.3d 959, 988 (7th Cir. 2016).
And because Mr. Smith didn’t pursue an appeal on this issue, he can’t raise it
“on collateral review unless [he] shows cause and prejudice,” Massaro v. United
States, 538 U.S. 500, 504 (2003), or actual innocence. Delatorre v. United States,
847 F.3d 837, 843 (7th Cir. 2017). Mr. Smith offered no cause for not moving to
suppress the confession before trial or pursuing an appeal on that issue and
doesn’t argue actual innocence, so he is barred from raising a claim that his
conviction was obtained by use of a coerced confession in a collateral attack. See
Massaro v. United States, 538 U.S. at 504; Delatorre v. United States, 847 F.3d
at 843; United States v. Cardena, 842 F.3d at 988.
Mr. Smith next argues that his conviction and sentence should be vacated
because his counsel provided him ineffective assistance of counsel. In support
of this claim, Mr. Smith argues that his counsel didn’t challenge a witness’s

testimony that allegedly contradicted a police report and his counsel failed
to offer to stipulate to his felony conviction.1
To prevail on an ineffective assistance of counsel claim, Mr. Smith must
show both that his attorneys’ performance “fell below an objective standard of
reasonableness” and that there is a reasonable probability that, but for his
attorney’s errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 688-693 (1984). This is a difficult
standard to meet; to prevail, Mr. Smith must show both “that counsel made
errors so serious that ‘counsel’ was not functioning as the counsel guaranteed
the defendant by the Sixth Amendment” and “that counsel’s errors were so
serious as to deprive [Mr. Smith] of a fair [result].” Strickland v. Washington, 466
U.S. at 687.
As to the performance prong of the Strickland inquiry, there is a strong
presumption that counsel performed effectively. See Berkey v. United States, 318
F.3d 768, 772 (7th Cir. 2003). “A court’s scrutiny of an attorney’s performance
is ‘highly deferential’ to eliminate as much as possible the distorting effects of
hindsight, and we ‘must indulge a strong presumption that counsel’s conduct

1 Under the ineffective assistance of counsel ground, Mr. Smith also asserts that his
counsel “wouldn’t even call a motion and said he wasn’t.” To the extent Mr. Smith is
trying to make a separate argument from his other ineffective assistance of counsel
claims, the court is hard-pressed to decipher it. While the court must construe Mr.
Smith’s petition liberally, see Gaylord v. United States, 829 F.3d 500, 505 (7th Cir.
2016), the court can summarily deny relief when a petitioner’s allegations are
unreasonably vague. See Rodriguez v. United States, 286 F.3d 972, 986 (7th Cir. 2002),
as amended on denial of reh'g and reh'g en banc (May 21, 2002). Mr. Smith provides no
information about what motion he thinks his counsel should have filed, why he thinks
such a motion would have been successful, and how such a successful motion would
have led to his acquittal, so he can’t demonstrate he is entitled to any relief due to his
counsel’s failure to file a motion.

falls within the wide range of reasonable professional assistance.’ ” Vinyard v.
United States, 804 F.3d at 1225 (quoting Strickland v. Washington, 466 U.S. at
687). Because reviewing courts shouldn’t second-guess counsel’s strategic
choices, the burden of showing that counsel’s decisions fell outside the wide
range of reasonable strategic choices “rest[s] squarely on the defendant.” Burt v.
Titlow, 571 U.S. 12, 22–23 (2013).
“Even if counsel’s performance was deficient, a petitioner must also show
that ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,’ meaning ‘a
probability sufficient to undermine confidence in the outcome.’ ” Eckstein v.
Kingston, 460 F.3d 844, 848 (7th Cir. 2006) (quoting Strickland v. Washington,
466 U.S. at 694).
Mr. Smith argues that his counsel was unconstitutionally ineffective
because he didn’t impeach a witness who, according to Mr. Smith, contradicted
a statement attributed to him in the police report by giving “a totally different
description of a gun” on the witness stand. Mr. Smith doesn’t say which witness
contradicted himself or provide a detailed description of allegedly contradictory
statements. This shortcoming alone is grounds for the court to reject this claim
because a collateral attack on a conviction or sentence “requires some threshold
showing of the evidentiary basis, beyond mere conclusory allegations,” that
supports the petitioner’s claims. Martin v. United States, 789 F.3d 703, 707 (7th
Cir. 2015) (emphasis supplied). But the court will construe his argument
liberally, see Gaylord v. United States, 829 F.3d 500, 505 (7th Cir. 2016), as the

government did in its response, and assume Mr. Smith is referring to the
testimony of Aaron Budny, who testified in court that he saw Mr. Smith with a
black and pink gun. The police report attributes a statement to Mr. Budny saying
Mr. Smith had a black gun, with no mention of the color pink.
Mr. Smith claims that when he presented his counsel with the police report
and pointed out the purported discrepancy, his counsel told Mr. Smith that the
statement in the report was inadmissible hearsay. His counsel was correct that
the report couldn’t be admitted as proof that the gun was black.
Although

Federal

Rule

of

Evidence

803(8)

makes

the

firsthand

observations of law enforcement officers in police reports admissible, “third-party
statements contained in a police report do not become admissible for their truth
by virtue of their presence in a public record and instead must have an
independent basis for admissibility.” Jordan v. Binns, 712 F.3d 1123, 1133 (7th
Cir. 2013) (citations omitted). The statement attributed to Mr. Budny in the
police report isn’t otherwise admissible under Rule 801(d)(1), 801(d)(2), or any
other exception to the hearsay rule. So, Mr. Smith can’t show that his counsel
was ineffective in failing to attempt to offer that evidence at trial. See Kavanagh
v. Berge, 73 F.3d 733, 736 (7th Cir. 1996) (“failure to offer inadmissible evidence
is not ineffective assistance”).
Mr. Smith’s counsel could have taken a different approach to put Mr.
Budny’s prior statement before the jury. He could have used the police report
simply to prove that Mr. Budny made the prior statement, but not as proof that
the prior statement was true. Or he could simply have asked Mr. Budny about

the prior statement during cross examination. Either approach would have
impeached Mr. Budny by letting the jury know he had described the gun
differently at two different times. But even if Mr. Smith could demonstrate that
his counsel’s failure to impeach the government’s witness failed the performance
prong of Strickland v. Washington, he can only succeed on this claim if he can
also show prejudice. “To establish prejudice, the defendant must show that ‘there
is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.’ ” United States v. Best, 426
F.3d 937, 945 (7th Cir. 2005) (quoting Strickland v. Washington, 466 U.S. at
694). “Here, that means [Mr. Smith] must show that . . . there was a ‘reasonable
probability’ that he would have been acquitted.” United States v. Berg, 714 F.3d
490, 497 (7th Cir. 2013) (quoting Rastafari v. Anderson, 278 F.3d 673, 689 (7th
Cir. 2002)). Mr. Smith can’t meet that burden.
The evidence against Mr. Smith was substantial and compelling. An eye
witness testified that Mr. Smith threatened him with a gun at a car dealership.
A second witness couldn’t see the gun from his vantage point, but corroborated
much of the first witness’s testimony. A police officer testified that when he
arrived on scene, he found a gun in the car Mr. Smith was driving matching the
witness’s description of the gun Mr. Smith had in the dealership. And the jury
watched the recording of an interview with law enforcement in which Mr. Smith
confessed to the crime. Even if Mr. Smith’s counsel had impeached a witness’s
testimony by showing the witness’s prior inconsistent statement, it isn’t
reasonably probable that the jury would have acquitted Mr. Smith. He can’t show

prejudice. See id.
Mr. Smith next argues that his counsel provided him with ineffective
assistance of counsel because his counsel “failed to offer to stipulate that [Mr.
Smith] had a prior felony conviction.” [Doc. No. 56 at 4]. The evidence submitted
by the government suggests that Mr. Smith’s counsel did discuss a stipulation
with the government and a proposed stipulation was drafted, but Mr. Smith
declined to stipulate to a prior felony conviction.
After the government sent Mr. Smith’s counsel an email asking if Mr.
Smith would stipulate to his prior felony conviction, Mr. Smith’s counsel
responded that he would see Mr. Smith the next day and that he “expect[ed] to
stipulate to the prior felony.” [Doc. No. 59-1 at 1]. The next day Mr. Smith’s
counsel emailed the government and said “Mr. Smith just left. He didn’t sign the
stipulation. You’ll need a witness to show . . . [the] prior conviction.” Id. If Mr.
Smith declined to stipulate to his prior conviction, his counsel couldn’t be found
to be ineffective for following his client’s directive. See United States v. Holman,
314 F.3d 837, 844 (7th Cir. 2002) (counsel can’t stipulate to a client’s guilt
without the client’s consent); U. S. ex rel. Ross v. Franzen, 668 F.2d 933, 941
(7th Cir.), on reh'g, 688 F.2d 1181 (7th Cir. 1982) (“it has long been the law of
this circuit that counsel may not stipulate to facts establishing the guilt of the
accused without the defendant's consent”).
The court needn’t decide whether this evidence forecloses a finding that
Mr. Smith’s counsel’s actions with regard to a stipulation were deficient because
Mr. Smith can’t show that he was prejudiced. As the court already noted, the

evidence against Mr. Smith presented at trial was substantial and compelling,
including eye witness testimony that Mr. Smith had a gun in the dealership,
testimony from a law enforcement officer that he found a gun matching the
witness’s description in the car Mr. Smith was driving, and Mr. Smith’s recorded
confession. Mr. Smith can’t show that “there was a ‘reasonable probability’ that
he would have been acquitted” if his counsel would have offered to stipulate to
his felony conviction. United States v. Berg, 714 F.3d 490, 497 (7th Cir. 2013)
(quoting Rastafari v. Anderson, 278 F.3d 673, 689 (7th Cir. 2002)). Accordingly,
his ineffective assistance of counsel claim fails. 

III. CERTIFICATE OF APPEALABILITY
According to Rule 11 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, a “court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Issuance of
a certificate of appealability requires the court to find that Mr. Smith has made
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). For the reasons stated, he hasn’t made such a showing, and the court
declines to issue a certificate of appealability.
IV. CONCLUSION
Based on the foregoing, the court DENIES the motion to vacate, [Doc. No.
56]; and DECLINES to issue a certificate of appealability.
SO ORDERED.

ENTERED: March 19, 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court
cc: Rodoundy Smith