Smith v. United States of America

Filing 9

ORDER: For the reasons stated above, the petition is dismissed. The Clerk of Court is respectfully directed to: 1) docket this Order in both of the above-captioned cases; 2) terminate ECF No. 24 in No. 20-CR-164; 3) close No. 24-CV-3693; and 4) send a copy of this Order to Teraje Smith, No. 01624-509, FCI McKean, Federal Correctional Institution, P.O. Box 8000, Bradford, PA 16701. As the Petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; Matthews v. United States, 682 F.3d 180, 185 (2d Cir. 2012). SO ORDERED. (Signed by Judge Cathy Seibel on 1/27/2025) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
TERAJE SMITH,
Petitioner,

ORDER

-against-

20-CR-164 (CS)
24-CV-3693 (CS)

UNITED STATES OF AMERICA,
Respondent.
------------------------------------------------------x
Seibel, J.

Before the Court is Petitioner Teraje Smith’s motion to vacate sentence pursuant to 28
U.S.C. § 2255, (ECF Nos. 23 (“Pet.”), 24), and the Government’s opposition thereto, (ECF No.
27). 1 For the reasons stated below, the Petition is dismissed.
On September 1, 2022, Petitioner was sentenced principally to 60 months’ imprisonment
on his conviction for conspiracy to transport a stolen vehicle, in violation of 18 U.S.C. § 371, and
96 months’ imprisonment, to run concurrently, on his conviction for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 21.) He now seeks vacatur of the
latter sentence on the ground that § 922(g)(1) is unconstitutional based on the Supreme Court’s
decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).

1

Docket references are to No. 20-CR-164.

Petitioner filed a document dated April 8, 2024, but it was not clear if he intended it to be
a § 2255 petition or an application for reduction of sentence under 18 U.S.C. § 3582(c)(1)(A), so
the Court requested that Petitioner clarify his intention. (Pet. at 4.) By letter dated April 22,
2024, Petitioner indicated that he was seeking vacatur of his sentence under § 2255. (ECF No.
24.)
1

The first reason the Petition must be denied is that it is untimely. A federal prisoner
seeking relief under § 2255 generally must file the motion within one year from the latest of four
benchmark dates: (1) when the judgment of conviction becomes final; (2) when a governmentcreated impediment to making such a motion is removed; (3) when the right asserted is initially
recognized by the Supreme Court, if that right has been made retroactively available to cases on
collateral review; or (4) when the facts supporting the claim(s) could have been discovered
through the exercise of due diligence. See 28 U.S.C. § 2255(f). Equitable tolling may be
available to excuse an untimely petition, but only where “the petitioner shows (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his
way and prevented timely filing.” Rivas v. Fischer, 687 F.3d 514, 538 (2d Cir. 2012). 2 If the
requirements for neither § 2255(f) nor equitable tolling are met, Petitioner’s claim may be heard
only if he shows he is actually innocent. See United States v. Flower, No. 14-CR-108, 2019 WL
5957883, at *5 (D. Vt. May 23, 2019) (“Given that Flower’s Motion is barred by the statute of
limitations set forth in 28 U.S.C. § 2255(f)(1)-(4), to obtain relief she must establish that she is
either actually innocent of her conviction or that she is entitled to equitable tolling of the statute
of limitations.”); United States v. Torres, No. 11-CR-389, 2017 WL 78513, at *2 (S.D.N.Y. Jan.
9, 2017) (referring to “the actual innocence gateway through [the] statute of limitations” of the
Antiterrorism and Effective Death Penalty Act). 3 Actual innocence is a “severely confined

2 Unless otherwise indicated, case quotations omit all internal citations, quotation marks,
footnotes, and alterations.
3

The Court will send Petitioner copies of all unpublished decisions cited in this Order.
2

category,” requiring new evidence showing that “it is more likely than not that no reasonable
juror would have convicted the petitioner.” McQuiggin v. Perkins, 569 U.S. 383, 395 (2013).
The Judgment in Defendant’s case was entered on September 8, 2022. (ECF No. 21.)
Because he did not appeal (consistent with his plea agreement), that conviction became final on
September 22, 2022. See United States v. Wright, 945 F.3d 677, 683 (2d Cir. 2019) (conviction
becomes final fourteen days after entry of judgment if no appeal filed, and time to file habeas
petition runs one year later); see also Fed. R. App. P. 4(b)(1) (allowing fourteen days to file
notice of appeal from judgment of conviction). Petitioner’s time to file under § 2255 thus ran
on September 22, 2023, under ' 2255(f)(1), unless one of the other provisions of ' 2255(f)
applies, equitable tolling is appropriate, or Petitioner is actually innocent. But the record
contains no support for any of those exceptions to the one-year rule. Petitioner had the
opportunity to respond to the Government’s argument regarding untimeliness, (ECF No. 27 at 57), but has not done so. The Petition is thus barred by the statute of limitations.
Even if it were not, the claim was waived. In his plea agreement, Petitioner agreed that
he would not “bring a collateral challenge, including but not limited to an application under Title
28, United States Code, Section 2255,” of any sentence of 162 months’ imprisonment or less.
(Court Exhibit 1 of May 16, 2022 at 6.) “A defendant’s knowing and voluntary waiver of the
right to appeal or collaterally attack his conviction and/or sentence is enforceable.” Sanford v.
United States, 841 F.3d 578, 580 (2d Cir. 2016). Indeed, if such waivers were not enforced,
they would “become[] meaningless and would cease to have value as a bargaining chip in the
hands of defendants.” Cook v. United States, 84 F.4th 118, 122 (2d Cir. 2023). The Second
Circuit has “recognized only five circumstances where [it] will not enforce a waiver: (1) where
3

the waiver was not made knowingly, voluntarily, and competently; (2) where the sentence was
based on constitutionally impermissible factors, such as ethnic, racial, or other prohibited biases;
(3) where the government breached the agreement containing the waiver; (4) where the district
court failed to enunciate any rationale for the defendant's sentence; and (5) where the waiver
“was unsupported by consideration.” Id. The record contains no indication that any of those
circumstances exist here, and Petitioner has not argued otherwise. The waiver thus bars the
claim.
Even if it did not, the claim is procedurally barred. “Because collateral challenges are in
tension with society’s strong interest in the finality of criminal convictions, the courts have
established rules that make it more difficult for a defendant to upset a conviction by collateral, as
opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
Failure to raise a claim on direct appeal forecloses review of that claim under § 2255, unless the
movant can show either cause and actual prejudice, or actual innocence. Bousley v. United
States, 523 U.S. 614, 622-23 (1998); see United States v. Warren, 335 F.3d 76, 79 (2d Cir.
2003). This is so even if, after the conviction has become final, there is a change in substantive
law helpful to the movant. See Bousley, 523 U.S. at 621-22; United States v. Thorn, 659 F.3d
227, 231-33 (2d Cir. 2011). To show cause for failure to raise the issue on direct appeal, the
movant must demonstrate an objective factor that prevented him from raising it, such as the
claim being so novel that it was not reasonably available. Bousley, 523 U.S. at 622. To show
prejudice, petitioner must show an error that “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” Murray v. Carrier, 477 U.S.
478, 494 (1986). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”
4

Bousley, 523 U.S. at 623.
Petitioner did not respond to the Government’s arguments regarding procedural default,
(ECF No. 27 at 8-9), and thus has made no showing of cause. Nor does it appear he could have,
given that Bruen was decided before he was sentenced. There is no apparent reason he could
not have raised it on direct appeal. Nor has Petitioner shown prejudice, for the reasons
discussed below. 4
Finally, if I could reach the merits, I would deny the Petition, for reasons recently and
succinctly summarized by Judge Vyskosil:
Many other defendants have filed similar motions [attacking § 922(g)(1) postBruen] in this District, and the Court is not aware of any instance in which such a
motion has succeeded. As this Court and every other court in the District to
consider the issue has previously explained, the Second Circuit has held that
Section 922(g)(1) is constitutional, see [United] States v. Bogle, 717 F.3d 281,
281-82 (2d Cir. 2013), and that precedent remains binding on this Court after
Bruen. Indeed, the Supreme Court this year reiterated that “prohibitions . . . on
the possession of firearms by felons. . . are presumptively lawful,” United States
v. Rahimi, 602 U.S. [680], 144 S. Ct. 1889, 1902 (2024). Furthermore, nothing
in Bruen or Rahimi, or any other precedent, supports the notion that Section
922(g)(1) is unconstitutional as applied to [Petitioner], who was previously
convicted of [robbery, among other things].

4

There is an exception to the requirement of cause and prejudice for claims of ineffective
assistance of counsel. Fountain v. United States, 357 F.3d 250, 254 (2d Cir. 2004). “[A]
petitioner may bring an ineffective assistance of counsel claim whether or not the petitioner
could have raised the claim on direct appeal.” Yick Man Mui, 614 F.3d at 54. But Petitioner
has not alleged ineffective assistance here. Further, any such claim would not succeed. The
Court is aware, from numerous § 922(g)(1) cases post-Bruen, that Federal Defenders of New
York, Inc. – which represented Petitioner here and is perhaps the premier defender organization
in the country – made the strategic decision not to forego favorable plea agreements to preserve
an argument that § 922(g)(1) is unconstitutional, expecting that (as occurred with United States
v. Davis, 588 U.S. 445 (2019)), it would be able to raise such a claim later on if a Supreme Court
decision abrogated Second Circuit precedent on the subject. That reasonable strategic decision
would not amount to ineffective assistance of counsel. See, e.g., Strickland v. Washington, 466
U.S. 668, 689 (1984); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
5

United States v. Ramos, No. 23-CR-554, 2024 WL 4979204, at *3 (S.D.N.Y. Dec. 4, 2024).
For the reasons stated above, the petition is dismissed. 5 The Clerk of Court is
respectfully directed to: 1) docket this Order in both of the above-captioned cases; 2) terminate
ECF No. 24 in No. 20-CR-164; 3) close No. 24-CV-3693; and 4) send a copy of this Order to
Teraje Smith, No. 01624-509, FCI McKean, Federal Correctional Institution, P.O. Box 8000,
Bradford, PA 16701. As the Petition makes no substantial showing of a denial of a
constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; Matthews v.
United States, 682 F.3d 180, 185 (2d Cir. 2012).
SO ORDERED.
Dated: January 27, 2025
White Plains, New York
___________________________
CATHY SEIBEL, U.S.D.J.

5

No hearing is necessary because the issues are ones of law and there are no disputed
facts requiring resolution at a hearing. See Jarvis v. United States, No. 10-CV-5693, 2012 WL
34091, at *4 n.2 (E.D.N.Y. Jan. 6, 2012); Frias v. United States, No. 09-CV-2537, 2010 WL
3564866, at *8 (S.D.N.Y. Sept. 13, 2010).
6