Smith v. Mosley
ORDER ADOPTING 13 REPORT AND RECOMMENDATIONS. Signed by District Judge Daniel P. Jordan, III on 10/12/16. [copy mailed to plaintiff](RRL)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
DEDRICK GERMOND SMITH
CIVIL ACTION NO. 3:15cv109-DPJ-FKB
B. MOSLEY, WARDEN, F.C.C.
This 28 U.S.C. § 2241 petition is before the Court on the Report and Recommendation
 of United States Magistrate Judge F. Keith Ball. Judge Ball recommended that habeas relief
be denied and Petitioner Dedrick Germond Smith’s petition be dismissed. Smith filed a timely
Objection  to the Report and Recommendation. For the reasons that follow, the Court adopts
the Report and Recommendation.1
Smith, a federal inmate housed at the Federal Correctional Complex in Yazoo City,
Mississippi, was convicted in the United States District Court for the Northern District of
Alabama of aiding and abetting the murder of a DEA Agent engaged in the performance of his
duties under 18 U.S.C. §§ 2, 1111, and 1114. Smith unsuccessfully appealed his conviction and
later filed a motion under 28 U.S.C. § 2255, which was denied. Two subsequent § 2255 motions
were dismissed as successive, and Smith filed his § 2241 petition in this Court on February 18,
2015. In his present petition, Smith challenges his conviction as an aider and abettor under 18
U.S.C. § 2 in light of the United States Supreme Court’s holding in United States v. Rosemond,
134 S. Ct. 1240 (2014).
Smith is proceeding pro se. And while the Court ultimately rejects his arguments, his
submission was impressively written.
In his Report and Recommendation, Judge Ball correctly noted that “[g]enerally, the
proper vehicle for a challenge to a conviction is a motion under 28 U.S.C. § 2255 in the court of
conviction, not a § 2241 action in the district of his incarceration.” Report & Recommendation
 at 2. “However, § 2241 may be utilized by a federal prisoner to challenge the legality of his
or her conviction or sentence if he or she can satisfy the mandates of the so-called § 2255
‘savings clause,’” which
applies to a claim (i) that is based on a retroactively applicable Supreme Court
decision which establishes that the petitioner may have been convicted of a
nonexistent offense and (ii) that was foreclosed by circuit law at the time when
the claim should have been raised in the petitioner’s trial, appeal, or first § 2255
Reyes-Requena v. United States, 243 F.3d 893, 901, 904 (5th Cir. 2001); see also 28 U.S.C. §
Judge Ball concluded that Rosemond does not apply outside the context of a conviction
for aiding and abetting a violation of 18 U.S.C. § 924(c) and therefore has no bearing on Smith’s
conviction for aiding and abetting a violation of 18 U.S.C. §§ 1111 and 1114. Report &
Recommendation  at 3. Judge Ball further concluded that, even if Rosemond does apply to
Smith’s conviction, his argument regarding the intent necessary to support an aiding-andabetting conviction was not foreclosed by the law in the Eleventh Circuit at the time of his trial,
appeal, or first § 2255 motion. Id. at 4–5.
Smith makes three arguments in his Objection: (1) Rosemond extends beyond the
context of aiding and abetting a violation of 18 U.S.C. § 924(c); (2) Smith’s claims were
foreclosed under Eleventh Circuit law prior to Rosemond; and (3) Rosemond represents a
substantive change of law that is retroactively applicable. Because Smith’s second and third
arguments are clearly unfounded, the Court will not further consider his first argument, though
Judge Ball correctly noted that it has been rejected in this and other courts. See id. at 3
Looking first at Rosemond, the Supreme Court held that the mens rea needed to support a
conviction for aiding and abetting the use of a firearm in a drug trafficking offense requires
advance knowledge of the firearm. 134 S. Ct. at 1249. This holding flowed from the “basics
about aiding and abetting law’s intent requirement,” which requires “the intent [to] go to the
specific and entire crime charged.” Id. at 1248.
The Eleventh Circuit has described Rosemond as “clarif[ying] the showing of intent
required for conviction of an aiding and abetting violation under section 924(c).” United States
v. Mack, 572 F. App’x 910, 923 (11th Cir. 2014). And an Alabama district court recently joined
other courts in concluding that an argument concerning the intent necessary to support an aidingand-abetting conviction regarding firearms would not have been foreclosed prior to Rosemond.
See Nesbitt v. Rathman, No. 1:14-cv-606-SLB-TMP, 2016 WL 783881, at *4 (N.D. Ala. Jan. 28,
2016), report and recommendation adopted, No. 1:14-CV-606-SLB-TMP, 2016 WL 778040
(N.D. Ala. Feb. 29, 2016) (“Eleventh Circuit precedent at the time of Nesbitt’s conviction
already required what Rosemond set forth: evidence that a defendant ‘shared criminal intent’
with a co-defendant who used or carried a firearm during a robbery.” (citing United States v.
Hamblin, 911 F.2d 551, 558–59 (11th Cir. 1990))).
The Nesbitt court based this conclusion on United States v. Hamblin, an aiding-andabetting case under § 924(c), in which the Eleventh Circuit stated that the government must
show “the defendant shared the same unlawful intent as the actual perpetrator.” Hamblin, 911
F.2d at 558. But Smith attempts to distinguish Hamblin, arguing that shared intent is not the
same as “advanced knowledge” under Rosemond because shared intent might exist with proof of
a “shared . . . intent to effectuate the predicate . . . offense.” Pet.’s Objection  at 6–7.
Smith’s argument ignores the conviction Hamblin reviewed. Hamblin was convicted of
aiding and abetting a gun charge under § 924(c), and the Eleventh Circuit’s discussion of intent
addressed the intent to commit that charge rather than the intent necessary to prove the predicate
offense. See Hamblin, 911 F.2d at 558 (noting that “government had the burden of proving that
Hamblin shared the criminal intent of his co-defendant with respect to the firearm charges”
(emphasis added)); id. (holding that “government never connected Hamblin to the firearms”); id.
(noting that conviction required “knowledge” of the firearm). Smith has not shown that his
Rosemond argument was “foreclosed” in the Eleventh Circuit. Reyes-Requena, 243 F.3d at 901,
904; see also Prieto v. Berlin, No. 14-cv-00514-JL, 2015 WL 6690132, at *2 (D.N.H. Nov. 2,
2015) (citing Hamblin and holding that Rosemond argument was not foreclosed in Eleventh
Circuit); Report and Recommendation  at 4 (collecting cases). Judge Ball correctly
concluded that Smith failed to establish the second prong of § 2255’s savings clause.
As for Smith’s argument that Rosemond applies retroactively, the Fifth Circuit has twice
rejected that position. See Ball v. Boyle, No. 15-20715, 2016 WL 4784020, at *1 (5th Cir. Sept.
13, 2016) (holding that petitioner had “not demonstrated [Rosemond] applies retroactively to
cases on collateral review”); Watson v. Mosley, 644 F. App’x 348, 348 (5th Cir. 2016) (holding
that “the Supreme Court gave no indication that its [Rosemond] decision applied retroactively to
cases on collateral review”). While these opinions were not selected for publication, they are
consistent with others from outside the Fifth Circuit. As one court noted, “[M]ost every court to
address the question has determined that Rosemond is not retroactively applicable.” Prieto, 2015
WL 6690132, at *2, n.4.
Because Smith has not satisfied the requirements of § 2255(e), his petition cannot be
viewed as one filed under § 2241, and is instead construed as a § 2255 motion. See In re
Bradford, 660 F.3d 226, 230 (5th Cir. 2011). And because “[a] section 2255 motion must be
filed in the sentencing court,” this Court lacks jurisdiction to hear it. Pack v. Yusuff, 218 F.3d
448, 451 (5th Cir. 2000). The motion must therefore be dismissed.
For the foregoing reasons, the Court finds that the Report and Recommendation  of
Magistrate Judge F. Keith Ball should be adopted as the Court’s opinion. Smith’s petition is
denied, and this case is dismissed.
A separate judgment will be entered in accordance with Federal Rule of Civil Procedure
SO ORDERED AND ADJUDGED this the 12th day of October, 2016.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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