Smith v. USA-2255

Filing 2

MEMORANDUM. Signed by Chief Judge James K. Bredar on 10/19/2017. (c/m 10/20/17 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

GARNETT GILBERT SMITH
Petitioner,
v.

*

UNITED STATES OF AMERICA
Respondent.

*

*

CIVIL ACTION NO. JKB-17-2304
CRIMINAL ACTION NO. JKB-12-0479

*****
MEMORANDUM
On August 10, 2017, Garnett Gilbert Smith, who is confined at the Federal Correctional
Institution at McDowell in Welch, West Virginia, filed a “motion to show cause as to why
petitioner‟s escape should be removed from the record.” United States v. Smith, Criminal No.
JKB-12-0479 (D. Md.) at ECF No. 213. The motion was treated as a 28 U.S.C. § 2255 motion to
vacate and the government was ordered to respond. Id. at ECF No. 214. The government duly
filed its response.

ECF No. 216.

Also filed by Smith is his Pro Se Request for

Explanation/Court Intervention for an Unexplained Collateral Consequence of Guilty Plea, ECF
No. 208, to which the government has responded, ECF No. 215.
As for the motion relating to the escape designation, the government has responded
presenting a two-fold argument for dismissal. First, the government asserts that Smith‟s filing
should not be construed as a § 2255 motion as he does not seek to set aside or correct his
conviction or sentence, but rather seeks a correction or explanation as to the reference of his
“escape offense” included in his pre-sentence report (“PSI”). The government argues that as the
PSI does not include an erroneous escape conviction in Smith‟s criminal history, the PSI need
not be corrected. Id. at ECF No. 216. Second, the government argues that should the court
construe Smith‟s motion as a motion to vacate it should be barred as a second or successive

§ 2255 motion because he has not received authorization to file the motion to vacate. Id. at 2,
n.1.
Criminal Case History
Smith was convicted of one count of conspiracy to distribute and possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846. On January 30, 2014, Smith was sentenced to
a 300-month term of confinement in the U.S. Bureau of Prisons (“BOP”) and a
supervised-release term of five years. Smith was also ordered to pay a special assessment of
$100.00. Judgment was entered on January 31, 2014. Id. at ECF No. 105. On September 25,
2014, the United States Court of Appeals for the Fourth Circuit affirmed the criminal judgment.
See United States v. Smith, 583 F. App‟x 230 (4th Cir. 2014).
On September 24, 2015, a self-represented motion to vacate was filed by Smith, raising
ineffective assistance of counsel grounds. United States v. Smith, Criminal No. JKB-12-0479 (D.
Md.) at ECF No. 158. After briefing, the court reviewed all issues, denied the motion to vacate,
and denied a certificate of appealability on January 8, 2015. Id. at ECF No. 175.

On June 1,

2016, the Fourth Circuit denied a certificate of appealability and dismissed the appeal.

See

United States v. Smith, 651 F. App‟x 184 (4th Cir. 2016).
Analysis
The law is well-settled that the district court lacks jurisdiction to consider a second or
successive motion filed under 28 U.S.C. § 2255 unless the motion has been certified in advance
by a panel of the appropriate circuit court of appeals and found to contain newly discovered
evidence bearing on the innocence of the movant, or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
2

28 U.S.C. § 2255(h); see also United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003). In
this case, Smith filed a prior § 2255 motion, which related to the same judgment and sentence
that he presently challenges.
To the extent that Smith‟s filing may be construed as a § 2255 motion, the court finds that
Smith neither states, nor does the record show, that he has obtained prior authorization from the
Fourth Circuit to bring this 28 U.S.C. § 2255 action. Thus, being without authorization, this
court is unable to hear Smith‟s claim. Winestock, 340 F.3d at 205. The motion must be
dismissed for lack of jurisdiction. See Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000).
Alternatively, the court finds that Smith‟s motion merits no general relief by way of court
order. Smith claims that while confined at a prior BOP facility in 2014, he was informed that an
escape status was placed on him “for classification purposes.” He states that he was later told
that the matter derived from the United States District Court. United States v. Smith, Criminal
No. JKB-12-0479 (D. Md.) at ECF No. 213 at 2.
The government maintains that Smith‟s PSI does not contain a reference to an “erroneous
escape conviction,” but does reflect convictions entered by the District Court of Maryland for
Baltimore City1 in 1988 on two counts of failure to appear (“FTA”) and for which Smith was
sentenced to 30 days of incarceration. The government argues that under BOP regulations, the
BOP security classification system requires that an “inmate‟s entire background of criminal
conviction (excluding the current offense) and institutional disciplinary findings [are to be] used
to assess points related to his/her history of violence and/or history of escape.” See BOP
1

The District Court of Maryland for Baltimore City is a Maryland state court. It is
not this Court in which Smith was convicted of conspiracy with intent to distribute and possess
with intent to distribute cocaine.
3

Program Statement P5100.08.2 The failure to appear or flight to avoid prosecution for any
offense is to be counted under the escape history item, when there is a documented finding of
guilt. Id. In light of Smith‟s state criminal convictions on the FTA counts, the court finds the
BOP use of the convictions when classifying Smith to a security grouping does not violate policy
or law.
With regard to Smith‟s Pro Se Request for Explanation/Court Intervention for an
Unexplained Collateral Consequence of Guilty Plea, to the extent it constitutes a motion, it will
be denied for the reasons stated by the government in its response.
Certificate of Appealability
In addition to the above analysis, a certificate of appealability (“COA”) must be considered.
Unless a COA is issued, a petitioner may not appeal the district court‟s decision in a § 2255
proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b). When a district court dismisses a

motion to vacate solely on procedural grounds, a certificate of appealability will not issue unless
the petitioner can demonstrate both “(1) „that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right‟ and (2) „that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.‟”
Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)); see also Buck v. Davis, ___ U.S. ___, 137 S. Ct. 759, 773-74 (2017). Petitioner has
failed to make the requisite showing and the court declines to issue a certificate of appealability.

2

This Program Statement governs federal inmates‟ security designations, custody
classification, and transfers within the BOP system. See U.S. Dep‟t of Justice, Fed. Bureau of
Prisons, P5100.08, Inmate Security Designation and Custody Classification (2006),
https://www.bop.gov/policy/progstat/5100_008.pdf.
4

The motion to vacate will be dismissed without prejudice for lack of jurisdiction, and the Pro Se
Request for Explanation/Court Intervention for an Unexplained Collateral Consequence of
Guilty Plea, treated as a motion, will be denied. A separate Order shall be entered reflecting the
opinion set out herein.

Date: October 19, 2017

/s/
James K. Bredar
Chief Judge

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