Smith v. USA - 2255

Filing 1

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 8/28/2013. (c/m 8/28/2013 eb)(ebs2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
NATHANIEL LEE SMITH,

*
*
Plaintiff,
*
*
*
v.
*
Civil No. AW-13-796
*
Criminal No. AW-10-216
UNITED STATES OF AMERICA
*
*
Defendant.
*
*
******************************************************************************
MEMORANDUM OPINION
Before the Court is Petitioner/Defendant Nathaniel Lee Smith (“Petitioner”)’s Motion to
Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255. For the reasons set forth
below, the Court will, by separate order, DENY Petitioner’s Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On February 17, 2010, Petitioner was arrested in Montgomery County, Maryland for
theft, assault, robbery, kidnapping, and burglary. Over time, all charges were dropped except for
theft, which resulted in a federal charge of possession of a firearm after a felony conviction.
Additionally, on February 26, 2010, Petitioner was sentenced on state drug charges in Prince
George’s County, Maryland for a term of five years’ imprisonment with two years suspended.
After a series of transfers between Prince George’s County, Montgomery County, and
Maryland state prison, on May 18, 2010, Petitioner was transferred into federal custody. On
March 21, 2011, before this Court, Petitioner pleaded guilty to one count of possession of a
firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). Petitioner was sentenced

1

to 78 months’ imprisonment for the felony firearm possession to run consecutively with 11
months for violating federal supervised release (AW 04-0388), for a total sentence of 89 months.
During sentencing, this Court credited Petitioner time served dating as far back as February 17,
2010. On September 11, 2011, Petitioner was transferred into state custody, where he served the
conclusion of his state sentence and, on February 9, 2013, Petitioner returned to the Federal
Bureau of Prisons, where he remains. On April 2, 2013, the Court entered an Amended Judgment
clarifying the credit Petitioner received for time served since February 17, 2010. Doc. No. 45.1
The pending Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255
was filed on April 4, 2013. Doc. No. 47. Petitioner requests that the Court consider his pro se
motion liberally and appoint counsel in its discretion. Id. at 1. Next, Petitioner requests that this
Court use the Supreme Court’s ruling in Setser v. United States, 132 S. Ct. 1463 (2012), to
vacate his conviction and sentence in order to resentence him according to “how the honorable
judge intended his sentence to be executed.” Doc. No. 47 at 5. Accordingly, Petitioner asks the
Court to interpret Setser, which addressed who had the authority to impose consecutive or
concurrent sentences prior to anticipated but undecided state sentences, as recognizing a new
right that should be applied retroactively. Id. at 2-3. Petitioner argues that the holding in Teague
v. Lane, 489 U.S. 288 (1989), which establishes a standard for retroactivity of criminal
procedural rules, is inapplicable here because Setser announced new substantive rules, which
generally apply retroactively. Doc. No. 47 at 2-3. The Government filed a Response in
opposition to Petitioner’s Motion on June 17, 2013. Doc. No. 59. Petitioner subsequently
1

On April 22, 2013, after Petitioner filed his Motion under 28 U.S.C. § 2255, he filed an appeal of the Court’s

Amended Judgment. The Court discerns no reason not to proceed with consideration of the § 2255 petition, as the
Amended Judgment appears to have no bearing on the arguments Plaintiff raises in his petition.

2

requested an extension of time to file a reply brief, and the Court granted Petitioner until August
19, 2013 to file a reply. Doc. No. 62. Despite being granted that extension, Petitioner never filed
a reply brief. Accordingly, the petition is ripe for the Court’s consideration.
II.

ANALYSIS
A.

Timeliness of Petitioner’s Motion

Petitioner contends that his § 2255 petition was timely because he filed within one year
from the “date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review.” 28 U.S.C. § 2255(f)(3). Petitioner argues that the Supreme Court’s
ruling in Setser, which was decided on March 28, 2012, established a new right within the
guidelines of § 2255(f)(3). Doc. No. 47 at 2. Although the motion was filed after the one-year
period expired on March 28, 2013, Petitioner asserts, and the Government does not contest, that
he submitted the motion via his prison’s internal mailing system on March 25, 2013. Doc. No. 59
at 2. Therefore, under the “Inmate Filing” procedures stated in Rule 3(d) of the Federal Rules
Governing 28 U.S.C. §§ 2254 and 2255 Cases, and per the “prison mailbox rule,” announced in
Houston v. Lack, 487 U.S. 266 (1998), the motion is timely. Therefore, this Court will look to the
merits of his argument.
B.

Consideration of Petitioner’s Motion and Appointment of Counsel

The Court considers this matter with the liberal construction afforded to pro se petitioners
seeking relief since “[d]ocuments filed pro se are . . . held to less stringent standards than formal
pleadings drafted by lawyers.” Saracay-Orellana v. United States, Crim. No. RDB-10-0590,
2013 WL 2490235, at *3 (D. Md. June 7, 2013) (internal quotation marks omitted) (citing

3

Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, because the power to appoint counsel is
discretionary and this cause of action is neither overly complex nor one where Petitioner cannot
adequately represent himself, the Court finds no exceptional circumstances requiring the
appointment of counsel. Cf. Cook v. Bounds, 518 F.2d 799, 780 (4th Cir. 1975).
C.

Petitioner’s claim is dissimilar from the facts and holding of Setser

In Setser, the Supreme Court considered the matter of Monroe Setser, a defendant who
pleaded guilty in federal district court and was sentenced prior to an anticipated but undecided
state sentence. 132 S. Ct. at 1466. The federal sentence mandated that Setser serve 151 months’
imprisonment, to run consecutively to the expected state probation violation sentence and
concurrently to the anticipated state methamphetamine possession sentence. However,
controversy arose because the state’s subsequently imposed sentence, directing both state counts
to run concurrently, made the federal sentencing orders impossible to enforce. Consequently,
Defendant Setser questioned whether the district judge or Bureau of Prisons should decide if the
sentence runs concurrently or consecutively. Choosing the former, the Supreme Court deemed
the subsequently applied state sentences irrelevant and looked only at the federal sentence
imposed. The Court explained that “the reasonableness standard we apply in reviewing federal
sentences asks whether the district court abused its discretion.” Setser, 132 S. Ct. at 1472 (citing
Gall v. United States, 552 U.S. 38, 46 (2007)). The Court found that the sentence imposed was
reasonable and the district court was correctly within its discretion to impose a sentence to run
both concurrently and consecutively with the anticipated state sentences. Id. at 1472-73.
Here, Petitioner’s motion is without merit because the facts leading to the controversy in
Setser are inconsistent with Petitioner’s stated account of events in the present case. Notably, this

4

Court sentenced Petitioner after the state court imposed a sentence of five years’ imprisonment
with two years suspended. See Doc. No. 41. Therefore, the confusion in Setser about the
implementation of the federal sentence as a result of the subsequently applied state sentence is
absent here. The sentence imposed by this Court was appropriate in light of the federal
sentencing guidelines, consistent with the presentence report prepared by the U.S. Probation
Office, and less than the maximum sentence permitted by statute, as acknowledged in
Petitioner’s plea agreement. See Doc. No. 34.
Moreover, this Court did not abuse its discretion. Looking only at the imposed federal
sentence, as the Supreme Court did in Setser, it is clear that Petitioner was appropriately
sentenced. In fact, the Court was more than reasonable in that it granted Petitioner time served
dating back to February 17, 2010, when Petitioner was held on state charges in Montgomery
County. See Doc. Nos. 41, 45. Therefore, having already granted Petitioner relief during
sentencing, the Court is not inclined to take additional measures at this time.
D.

Setser does not retroactively apply to impact Petitioner’s sentence

Addressing Petitioner’s retroactivity argument, Petitioner and the Government dispute
whether Setser announces a new rule, which may impact Petitioner’s sentencing if applied
retroactively. The Supreme Court explained that “a case announces a new rule when it breaks
ground or imposes a new obligation on the States or the Federal Government,” meaning the
case’s “result was not dictated by precedent existing at the time the defendant’s conviction
became final.” Teague, 489 U.S. at 301. Conversely, a rule is not new if it is “merely an
application of the principle that governed” a previous decision. Yates v. Aiken, 484 U.S. 211, 217
(1988).

5

Here, the Government contends that the Supreme Court did not announce a new rule in
Setser, but rather reiterated that district courts have traditionally held discretion on similar issues
under 18 U.S.C. § 3584 and that judges possess the discretion to impose consecutive or
concurrent sentences even for anticipated but undecided state sentences. On the other hand,
Setser is arguably a new rule because it is highly possible that the Court’s holding in Setser
establishes new ground. Section 3584 speaks to multiple sentences “imposed on a defendant at
the same time, or if a term of imprisonment is imposed on a defendant who is already subject to
an undischarged term of imprisonment.” 18 U.S.C. § 3584. It does not comment on the situation
addressed in Setser, where the district court imposed sentences to run concurrently and
consecutively to anticipated but not yet imposed state sentences. As a result, the Supreme Court
may have adopted a fresh interpretation of § 3584, making a rule new for the purposes of
retroactivity analysis.
The Court does not need to accept either argument, however, as the Court cannot apply
Setser retroactively. Even assuming what Petitioner urges this Court to accept, that Setser
announces a new rule, this Court cannot make such a leap to declare it applicable to Petitioner’s
sentence without considering all of the factors of retroactivity, especially those articulated in
Teague. This includes the general principle that new substantive rules apply retroactively, but
new procedural rules are solely applied to “all defendants whose convictions are not final when
the rule is announced.” Teague, 489 U.S. at 319.
Substantive rules “narrow the scope of a criminal statute by interpreting its terms,”
“alter[] the range of conduct or the class of persons that the law punishes,” or “produce a class of
persons convicted of conduct the law does not make criminal.” Schriro v. Summerlin, 542 U.S.

6

348, 352-53 (2004). Petitioner contends that Setser establishes a substantive rule because it is a
statutory interpretation of 18 U.S.C. § 3584(a), making it a retroactive decision applicable to the
§ 2255(f)(3) claim. The Court finds otherwise because Setser, in choosing who has the authority
to impose consecutive or concurrent sentences, has none of the aforementioned effects.
If anything, when supposing that Setser established a new rule, it is a procedural rule. For
a new procedural rule to apply retroactively, it must fit within two exceptions. The first is
reserved for rules that place “certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe.” Teague, 489 U.S. at 311 (citation
omitted). Setser’s directive lands outside this exception. The second exception is reserved for
rules that establish principles “implicit in the concept of ordered liberty,” akin to “watershed
rules of criminal procedure” that implicate the fundamental fairness of the criminal proceeding.
Teague, 489 U.S. at 311 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937)). This
extremely narrow exception is reserved for rules that “properly alter our understanding of the
bedrock procedural elements that must be found to vitiate the fairness of a particular
conviction,” such as the Supreme Court’s ruling in Gideon v. Wainwright, 372 U.S. 335 (1963),
which required states to provide defendants with their Sixth Amendment right to assistance of
counsel in all criminal proceedings. Teague, 489 U.S. at 311. Here, Setser’s clarification about
imposing concurrent and consecutive sentences, particularly in advance of anticipated but not yet
imposed state sentences, does not meet this stringent standard. As a result, even if the Court
decided Setser announced a new procedural rule, it would not apply retroactively to alter
Petitioner’s sentence.
III.

CONCLUSION

7

The Court has gone to great lengths to liberally construe Petitioner’s § 2255 motion.
After careful consideration, the Court concludes that Petitioner’s claims are without merit
because, even assuming that the Supreme Court’s ruling in Setser announced a new rule, it is not
one that applies retroactively to alter Petitioner’s sentence. Moreover, the facts in Setser are
significantly different from those in Petitioner’s case. Therefore, Petitioner’s Motion to Vacate,
Set Aside, or Correct a Sentence under 28 U.S.C. § 2255 will be DENIED.
IV.

A CERTIFICATE OF APPEALABILITY

There is no absolute entitlement to appeal a district court’s denial of a Motion under
§ 2255. See 28 U.S.C. § 2353(c)(1). “A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). To meet this burden, an applicant must show that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880,
893 (1983)). It is the Court’s view that Petitioner has raised no arguments that cause this Court
to view the issues as debatable, find that the issues could have been resolved differently, or
conclude that the issues raise questions which warrant further review. Accordingly, the Court
denies a Certificate of Appealability.
A separate Order will be issued.
August 28, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

8