Smith v. USA - 2255
MEMORANDUM OPINION Signed by Judge Richard D. Bennett on 11/23/2016. (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEVIN BERNARD SMITH,
UNITED STATES OF AMERICA,
Civil Action No. RDB-14-2077
Criminal Action No. RDB-12-0333
Currently pending before this Court is pro se Petitioner Kevin Bernard Smith’s
(“Petitioner” or “Smith”) Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 (ECF No. 106). 1 Petitioner argues that his trial counsel rendered ineffective
assistance, in violation of his rights under the Sixth Amendment to the United States
Constitution, U.S. Const. amend. VI. This Court has reviewed the parties’ submissions and
has determined that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the
reasons that follow, Petitioner’s Motion to Vacate (ECF No. 106) is DENIED.
Kevin Bernard Smith (“Petitioner” or “Smith”) was charged with Counts I, II, III,
and VII of a nine-count Indictment (ECF. No 1) in which three Defendants were charged in
connection with an alleged scheme to illegally obtain unemployment insurance benefits using
Also pending before this Court is Petitioner’s Motion to voluntarily Dismiss (ECF No. 105) his own prior
Motions to Change Restitution Schedule of Payments (ECF Nos. 103 & 104) because “the Bureau of Prisons
has resolved the matter.” See Motion to Dismiss, ECF No. 105. Petitioner’s Motion to Dismiss (ECF No.
105) is GRANTED. Accordingly, Petitioner’s Motions to Change Restitution Schedule of Payments (ECF
Nos. 103 & 104) are DISMISSED.
other people’s identification information. See Indictment, p.3, ECF No 1. Petitioner pled
guilty to conspiracy to commit access device fraud, in violation of 18 U.S.C. § 1029(a)(2),
(b)(2) (Count I), and aggravated identity theft, in violation of 18 U.S.C. § 1028A (Count III).
See Rearraignment Transcript, ECF No. 113-3 [SEALED]. Pursuant to the Plea Agreement,
the Government dismissed Counts II and VII of the Indictment. At the rearraingment
hearing, this Court engaged in a colloquy with Petitioner, pursuant to Rule 11 of the Federal
Rules of Criminal Procedure, during which Petitioner stated that he was satisfied with his
counsel’s advice and that he was voluntarily pleading guilty. See Transcript, ECF No. 113-3.
Additionally, Petitioner admitted on the record before this Court that the Statement of Facts
included in the plea deal was an accurate description of the identity theft scheme. See id. This
Court subsequently sentenced Petitioner to a total of sixty-five months imprisonment (fortyone months for Count I and twenty-four months consecutive for Count III). See J., ECF No.
Petitioner appealed his sentence to the United States Court of Appeals for the Fourth
Circuit, “arguing that the statement of facts submitted at his plea hearing was insufficient to
provide a factual basis for his guilty pleas, rendering his pleas involuntary and constructively
amending the indictment.” United States v. Smith, 536 F. App’x. 370, 371 (4th Cir. 2013).
Petitioner also argued that “counsel rendered ineffective assistance in advising him to plead
guilty.” Id. The Fourth Circuit rejected Petitioner’s arguments and affirmed his sentence. Id.
Specifically, the Fourth Circuit held that the statement of facts presented during Petitioner’s
plea colloquy sufficiently supported Petitioner’s guilty pleas and that any claim for ineffective
assistance of counsel must be raised “in an appropriate proceeding for post-conviction
Subsequently, Petitioner filed the pending Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 106).2 Petitioner argues that he received
ineffective assistance of counsel in violation of his Sixth Amendment rights. Specifically,
Petitioner contends that the Government’s evidence was insufficient to prove the aggravated
identity theft charge (Count III), that his attorney failed to discover or notify him of this fact,
and that if he had known the Government’s evidence was insufficient, he would not have
pled guilty, but rather would have insisted on going to trial. Mot. to Vacate, ¶ 26, ECF No.
STANDARD OF REVIEW
Pro se filings are “liberally construed” and are “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)(citation
omitted). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or
correct his sentence where: (1) “the sentence was imposed in violation of the Constitution or
laws of the United States,” (2) the court lacked “jurisdiction to impose the sentence, . . . [(3)]
the sentence was in excess of the maximum authorized by law, or [(4) the sentence] is
otherwise subject to a collateral attack.” 28 U.S.C. § 2255. “[A]n error of law does not
provide a basis for collateral attack unless the claimed error constituted ‘a fundamental
defect which inherently results in a complete miscarriage of justice.’”
United States v.
Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
This Court will address all the arguments raised in Petitioner’s initial Motion to Vacate (ECF No. 106) and Amended
Motion to Vacate (ECF No. 112).
To succeed on a claim for ineffective assistance of counsel, Petitioner must satisfy the
two-pronged test established in Strickland v. Washington. 466 U.S. 668, 671 (1984). First,
Petitioner must show that his counsel’s performance was deficient such that it fell below an
“objective standard of reasonableness.” Id. at 688. In assessing whether counsel’s
performance was deficient, courts adopt a “strong presumption” that an attorney’s actions
fall within the “wide range of reasonable professional assistance.” Id. at 689. Second,
Petitioner must show that his counsel’s performance was prejudicial, meaning the defendant
was “depriv[ed] . . . of a fair trial.” Id. at 687. To demonstrate prejudice, Petitioner must
show there was a “reasonable probability that, but-for counsel’s [alleged] unprofessional
errors, the result of the proceeding[s] would have been different.” Id. at 694. Both of these
prongs must be satisfied for the Petitioner to obtain the relief he is seeking. Id. at 687.
Petitioner asserts that his attorney’s performance was deficient because he failed to
realize that the Government could not prove the necessary elements of aggravated identity
theft (Count III). Aggravated identity theft requires that one, in the commission of a
statutorily enumerated underlying felony, “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another person.” 18 U.S.C. § 1028A. Petitioner
argues that an account number he possessed “was not an ‘access device,’ it was an
‘unauthorized access device,’ and therefore could not be a means of identification.” Mot. to
Vacate, ¶ 13, ECF No. 106. Petitioner also claims that because the account was fraudulently
obtained, the victim never had possession of the account, as “something unlawful cannot
lawfully belong to someone.” Id. at ¶ 20. Therefore, Petitioner contends, he never possessed
a means of identification that belonged to another. See Id. at ¶ ¶ 13-20.
As an initial matter, Petitioner contradicts his sworn statements before this Court. At
his rearraignment hearing, Petitioner stated on the record that the Government’s evidence
proved he committed aggravated identity theft. Gov’t Response Ex. 2, ECF No. 113.
Moreover, Petitioner asks this Court to narrowly define the key elements of aggravated
identity theft, though the statute explicitly calls for broader definitions than the ones
Petitioner seeks. See, e.g., 18 U.S.C. § 1028(d)(7)(defining “means of identification” as “any
name of number that may be used . . . to identify a specific individual”) (emphasis added).
Thus, absent any additional evidence beyond these conclusory contentions, Petitioner has
failed to demonstrate that his attorney’s performance was objectively unreasonable. See
United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (quoting United States v. Thomas, 221
F.3d 430, 437 (3d Cir. 2000) (noting that mere conclusory statements are insufficient for
satisfying the two prongs of the Strickland test).
Even if Petitioner established that his counsel’s conduct was unreasonable, Petitioner
has failed to demonstrate any prejudice. In the plea bargaining context, the “prejudice prong
of the [Strickland] test is slightly modified,” as Petitioner must show “there is a reasonable
probability that, but-for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (internal
quotation marks omitted); see also id. (quoting Hill, 474 U.S. at 59).
For a guilty plea to be deemed valid, there must be an “affirmative showing [by the
defendant] that [the plea] was intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242
(1969). Such an affirmative showing cannot come from a “silent record,” but rather must
involve “a thorough, on-the-record inquiry.” Savino v. Murray, 82 F.3d 593, 603 (4th Cir.
1996) (referencing Boykin, 395 U.S. 243-44). The Fourth Circuit has long recognized that a
defendant’s sworn statements attesting to their comprehension of a guilty plea “are treated as
conclusive with regard to the validity of the plea and may not be controverted later.” Id. at
603. “Thus, in the absence of extraordinary circumstances, 3 allegations in a § 2255 motion
that directly contradict the petitioner’s sworn statements made during a properly
conducted Rule 11 colloquy are always ‘palpably incredible’ and ‘patently frivolous or false.’”
United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005).
Petitioner is incapable of demonstrating any such “extraordinary circumstances,” as
his sworn statements on the record before this Court explicitly acknowledged his satisfaction
with counsel’s advice and confirmed the voluntariness of his plea. The rearraignment record
captured the following colloquy between the Petitioner and the Court:
Mr. Smith, do you understand that you’re
now under oath?
Are you fully satisfied with Mr.
Montemarano and his representation . . .
are you satisfied with the advice he’s given
See United States. v. White, 366 F.3d 291, 300 (4th Cir 2004) (the Fourth Circuit found that blatant ineffective
assistance of counsel, which the government conceded rendered a plea involuntary, constitutes “the type of
‘extraordinary circumstances’ that warrant an evidentiary hearing”); see also Fontaine v. United States, 411 U.S.
213, 214–15 (1973) (holding that severe illness and lack of counsel during a plea colloquy raises uncertainty
about the voluntariness of such a guilty plea).
Are you pleading guilty on your own freely
because you are, in fact, guilty?
Are you satisfied, then, that you understand all
the possible consequences of your plea of guilty?
Transcript, ECF No. 113-3.
Hence, Petitioner’s assertions in the pending motion outright contradict his sworn
statements before this Court. This court is instructed to “dismiss any § 2255 motion that
necessarily relies on allegations that contradict the [Petitioner’s] sworn statements.” Lemaster,
403 F.3d at 221. Accordingly, Petitioner’s claim of ineffective assistance of counsel must
For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence (ECF No. 106) is DENIED.4
Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. § 2255,
the court is required to issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a “jurisdictional prerequisite” to an
appeal from the court’s earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007). A certificate of appealability may issue “only if the applicant has made a substantial
Because Petitioner has failed to raise any grounds for relief, Petitioner’s Motions for Discovery (ECF No.
111), Appointment of a Magistrate Judge (ECF No. 121), and Partial Summary Judgement (ECF No. 130) are
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner’s motion on its merits, a petitioner satisfies this standard by demonstrating
that reasonable jurists would find the court’s assessment of the constitutional claims
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Petitioner’s
claim debatable, a certificate of appealability is DENIED.
A separate Order follows.
November 23, 2016
Richard D. Bennett
United States District Judge
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