SMITH v. USA

Filing 7

ENTRY: For the reasons explained in this Entry, the motion of Justin Smith ("Smith") for relief pursuant to 28 U.S.C. 2255 must be denied and the action dismissed with prejudice. The court therefore denies a certificate ofappealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 12/11/2012. Copy sent to Justin Smith via US Mail.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
JUSTIN SMITH,
Movant,
vs.
UNITED STATES OF AMERICA.

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1:11-cv-1709-WTL-DKL
1:10-cr-0044-WTL-KPF-1

Entry Denying Motion for Relief Pursuant to
28 U.S.C. ' 2255 and Denying Certificate of Appealability
For the reasons explained in this Entry, the motion of Justin Smith (“Smith”)
for relief pursuant to 28 U.S.C. ' 2255 must be denied and the action dismissed
with prejudice. In addition, the court finds that a certificate of appealability should
not issue.
I. The ' 2255 Motion
Background
On March 16, 2010, Smith was charged with two counts of robbery (counts
one and three) and two counts of use and carrying a firearm in furtherance of a
crime of violence (counts two and four) in No. 1:10-cr-0044-WTL-KPF-1. On
September 10, 2010, Smith filed a petition to enter a plea of guilty and on that same
day the parties submitted a written plea agreement.
On December 22, 2010, the court conducted a change of plea hearing. The
court inquired of Smith whether he understood the rights that he would relinquish
if the court accepted his guilty plea to counts one, two and three. The court was
satisfied that Smith was competent to enter a plea of guilty and that the plea was
made knowingly and voluntarily. The court also accepted the stipulated factual
basis for the plea. The court accepted the plea agreement and adjudged Smith
guilty. Count four was dismissed.
Smith was sentenced to a term of 324 months of imprisonment (240 months
on counts one and three, concurrent, and 84 months on count two) to be followed by
five years of supervised release.
No appeal was filed with respect to the disposition of the case. Smith filed his
motion to vacate pursuant to ' 2255 on December 23, 2011.

Discussion
A motion pursuant to 28 U.S.C. ' 2255 is the presumptive means by which a
federal prisoner can challenge his conviction or sentence. See Davis v. United States,
417 U.S. 333, 343 (1974). In his § 2255 motion, Smith asserts four claims: 1) he was
denied effective assistance of counsel when counsel unlawfully induced Smith to
plead guilty by not telling him that he did not have to give up his right to appeal; 2)
his conviction was obtained by use of a coerced confession in a state court case; 3) he
was denied effective assistance of counsel when counsel told him counsel would not
challenge the use of statements Smith made admitting everything he had been
charged with in state court; and 4) his sentence was unfair and harsh. The United
States argues that Smith’s ' 2255 motion is barred by the waiver of post-conviction
relief rights in the written plea agreement.
Paragraph 9 of the plea agreement stated that Smith “expressly waives his
right to appeal his conviction on any ground. The defendant also waives his right to
appeal the sentence imposed, including the right to appeal conferred by Title 18,
United States Code, Section 3742, on any ground, so long as the Court sentences
him to a term of imprisonment of twenty-five (25) to thirty (30) years.” It further
states that Smith “also waives the right to contest the sentence imposed and the
manner in which it was determined in any collateral attack, including an action
brought under Title 28, United States Code, Section 2255 on any ground, so long as
the Court sentences him to a term of imprisonment of twenty-five (25) to thirty (30)
years.”
The Seventh Circuit has recognized the validity of waivers such as that
included in the plea agreement in this case. “A defendant may validly waive both
his right to a direct appeal and his right to collateral review under § 2255 as part of
his plea agreement.” Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). Such
waivers are upheld and enforced with limited exceptions in cases in which 1) the
plea agreement was involuntary, 2) the district court relied on a constitutionally
impermissible factor such as race, 3) the sentence exceeded the statutory maximum,
or 4) the defendant claims ineffective assistance of counsel in relation to the
negotiation of the plea agreement. Id.; see also Mason v. United States, 211 F.3d
1065, 1069 (7th Cir. 2000) (because the ineffective assistance of counsel challenge
relating to sentencing had nothing to do with the issue of a deficient negotiation of
the waiver, the petitioner waived his right to seek post-conviction relief); Jones v.
United States, 167 F.3d 1142, 1145 (7th Cir. 1999) (“waivers are enforceable as a
general rule; the right to mount a collateral attack pursuant to ' 2255 survives only
with respect to those discrete claims which relate directly to the negotiation of the
waiver.@).

In Mason, the court stated that the following analysis should be considered in
determining whether a claim has been waived: A[C]an the petitioner establish that
the waiver was not knowingly or voluntarily made, and/or can he demonstrate
ineffective assistance of counsel with respect to the negotiation of the waiver?@
Mason, 211 F.3d at 1069. In addition, to prevail in an ineffective assistance of
counsel claim as to a guilty plea, under Strickland v. Washington, 466 U.S. 668, 694
(1984), a movant must demonstrate through objective evidence that counsel's advice
regarding the plea was objectively unreasonable and that there is a reasonable
probability that but for counsel's error, he would not have pled guilty and would
have insisted on going to trial. Mulero v. Thompson, 668 F.3d 529, 537 (7th Cir.
2012); Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011) (movant’s claim
that counsel should have investigated circumstances of search and moved to
suppress evidence in context of challenge to guilty plea failed for lack of evidence of
invalid consent).
The factual basis in support of Smith’s guilty plea, signed by Smith, provided
detailed information concerning a number of robberies which Smith admitted
committing after he had been advised of his Miranda rights. The plea agreement
recited that the parties agreed that the court should sentence Smith to a total term
of imprisonment between twenty-five (25) and thirty (30) years. This was broken
down to eighteen (18) to twenty-three (23) total years for counts one and three, and
seven (7) years for count two. Smith was, in fact, sentenced to 324 months, twentyseven (27) years.
Smith now alleges that counsel should have tried to suppress his confession
that was given to an Indianapolis police detective. He alleges without explanation
that his confession was “coerced.” He argues that his counsel wrongfully told him
that the plea agreement was the best deal he would get. He asserts that counsel did
not tell him that if he did not plead guilty he would not have to waive his right to
appeal. All of these assertions are baseless—baseless in the sense of being refuted
by the record of the parties’ understandings and agreement. Smith signed a
statement in the plea agreement in which he acknowledged that he understood the
terms of the agreement and that the terms correctly reflected the results of plea
negotiations. Smith affirmed that he was freely and voluntarily pleading guilty and
he was pleading guilty because he was guilty of the crimes to which he was entering
his plea. His statement also recited that his attorney informed him that he had the
right to appeal his conviction and sentence that he received, unless he waived his
right to appeal as part of the plea agreement.
To allow Smith to now contradict his written statements and his sworn
testimony would defeat the very purpose of the plea agreement. “Justice would be
ill-served, and the utility of the Rule 11 colloquy would be undermined, by allowing
[a defendant] to renege on his representation under oath to the district court. . . .”
Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010). “The presumption of

verity [of a defendant’s statements in pleading guilty] is overcome only if the
defendant satisfies a heavy burden of persuasion.” United States v. Logan, 244 F.3d
553, 558 (7th Cir. 2001)(internal quotation omitted). Smith has not met that burden
here. He has not shown that his plea agreement was not knowingly and voluntarily
made. In addition, he has not shown any ineffective assistance of counsel in relation
to his plea agreement.
As to Smith’s contention that his sentence was harsh, that also is baseless.
The plea agreement recites that the maximum sentence for counts one and three
would be twenty (20) years for each count. For count two, the minimum sentence
was seven (7) years and the maximum sentence would be life imprisonment. Smith
was sentenced to twenty-seven (27) years, which was less than the maximum
penalty he faced. Moreover, Smith was sentenced within the range to which he
agreed as part of the plea agreement.
Accordingly, as to all of his claims, the waiver provision of the plea
agreement is valid and will be enforced. Smith’s ' 2255 challenge is barred by the
waiver provision in the plea agreement.
Conclusion
The foregoing shows that Smith is not entitled to relief pursuant to 28 U.S.C.
' 2255. The motion for relief pursuant to ' 2255 is therefore denied. Judgment
consistent with this Entry shall now issue.
This Entry and the accompanying Judgment shall also be entered on
the docket in the underlying criminal action, No. 1:10-cr-00044-WTL-KPF-1.
II. Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the
Rules Governing ' 2255 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that
Smith has failed to show that reasonable jurists would find Ait debatable whether
the petition states a valid claim of the denial of a constitutional right@ and
Adebatable whether [this court] was correct in its procedural ruling.@ Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appealability.
IT IS SO ORDERED.

12/11/2012
Date: __________________

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Distribution:
[e-mail]
Justin Smith
Reg. No. 09497-028
USP-Terre Haute
P.O. Box 33
Terre Haute, IN 47808