Smith v. United States of America

Filing 32

ORDER denying Motion Pursuant to 28 U.S.C. Section 2255, ORDER denying Motion for Evidentiary Hearing, ORDER denying certificate of appealability, ORDER certifying appeal not taken in good faith, and ORDER denying leave to proceed in forma pauperis on appeal. Signed by Judge Samuel H. Mays, Jr on 9/14/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
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BOBBY DEANGELO SMITH
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 2:14-cv-02223-SHM-tmp
No. 2:08-cr-20201-SHM-tmp-1

ORDER

Before the Court is Bobby DeAngelo Smith’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “§ 2255 Motion”).
ECF No. 1.)

(§ 2255 Mot.,

On April 2, 2014, the Court ordered Smith to file

an amended § 2255 Motion on an official form.

(ECF No. 4.)

On

June 6, 2014, Smith filed a timely Amended Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “Amended § 2255 Motion”).
§ 2255 Mot., ECF No. 5.)

Smith moved to supplement his Amended

§ 2255 Motion on May 26, 2015.
17.)

(Supp. § 2255 Mot., ECF No.

The Court granted that motion on November 7, 2016.

No. 22.)

(Am.

(ECF

The Government responded to Smith’s supplement on

November 14, 2016.

(ECF No. 23.)

The Government responded to

Smith’s Amended § 2255 Motion on June 9, 2017.

(ECF No. 27.)

Smith filed a reply and a motion for evidentiary hearing on
September 5, 2017.

(ECF No. 31.)

For the following reasons, the Amended § 2255 Motion is
DENIED.

Smith’s request for relief under Johnson and request

for an evidentiary hearing are also DENIED.
I.

BACKGROUND
On June 26, 2008, the grand jury returned an indictment

charging Smith and Regina Hinton with four counts of
counterfeiting United States currency with intent to defraud,
in violation of 18 U.S.C. § 471, and four counts of knowingly
possessing and concealing counterfeit United States currency,
in violation of 18 U.S.C. § 472.
14.) 1

(Indictment 1-8, Cr. ECF No.

The indictment also charged Smith with one count of

knowingly possessing a firearm and one count of knowingly
possessing ammunition after having been convicted of a crime
punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g).

(Id. at 9-10.)

A Superseding

Indictment also charged Smith and Hinton with one count of
conspiracy, one count of counterfeiting with intent to defraud,
one count of knowingly attempting to pass counterfeit money,
and one count of knowingly possessing and concealing
counterfeit money; it charged Smith with one count of
1

Citations to (Cr. ECF ##) refer to the criminal case United States
v. Smith, No. 2:08-cr-20201-SHM-tmp (W.D. Tenn.).

2

possessing a firearm and one count of possessing ammunition
after having been convicted of a felony.
Indictment 1-7, Cr. ECF No. 76.)

(Superseding

A Second Superseding

Indictment further charged Smith, Hinton, and Smith’s mother,
Dannette Ross, with conspiracy to corruptly influence or impede
an official proceeding, and attempting to influence or impede
an official proceeding, in violation of 18 U.S.C. § 1512(c)(2).
(Second Superseding Indictment 1-10, Cr. ECF No. 96.)
Smith was represented by Stephen R. Leffler, who filed a
motion on Smith’s behalf to suppress evidence found by U.S.
Secret Service agents at Hinton’s apartment, statements made by
Smith and Hinton to the agents, and the fruits of the allegedly
illegal search.

(See Cr. ECF No. 198.)

Smith argued that the

Fourth Amendment protected him against the agents’ search of
Hinton’s apartment and that Hinton’s consent to the search was
coerced.

The Court referred the motion to the Magistrate Judge

for hearing and recommendation.

(See Cr. ECF No. 199.)

At the

hearing, Hinton invoked her Fifth Amendment right not to
testify.

(Suppression Hr’g Tr., Cr. ECF No. 251 at 625-26.)

On August 16, 2010, after the hearing and additional briefing,
United States Magistrate Judge Tu M. Pham filed a Report and
Recommendation, recommending denial of Smith’s motion.
ECF No. 243 at 22.)

(Cr.

Smith objected and also moved to dismiss

3

for violation of his right to a speedy trial.
264.)

(Cr. ECF No.

The Court denied Smith’s motion to dismiss, overruled

Smith’s objections, and adopted the Magistrate Judge’s Report
and Recommendation (the “Report”).

(Cr. ECF No. 267.)

The case proceeded to trial on November 30, 2010.
ECF No. 296.)

(Cr.

Hinton testified that she “thought [she] heard”

or did hear a promise by law enforcement to release her and
Smith in exchange for the counterfeiting printer (Trial Tr.,
Cr. ECF No. 369-1 at 2067:16-25 – 2068:1-3.)

Leffler moved for

a mistrial, arguing that Hinton’s trial testimony undercut the
basis for the probable cause for the search of her apartment.
(Trial Tr., Cr. ECF No. 369-1 at 2081:1-25 – 2082:1-3.)

The

Court denied the motion, finding that even if “[Hinton’s]
testimony [had] been heard at the suppression hearing . . . the
motion still would have been denied.”

(Id. at 2083:9-24.)

On December 3, 2010, a jury convicted Smith on all counts.
(Jury Verdict, Cr. ECF No. 302.)

At his sentencing, the Court

determined that Smith was an armed career criminal under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because
Smith had two prior convictions for aggravated robbery and one
prior conviction of aggravated robbery (amended to robbery)
under Tennessee law.

(Sentencing Hr’g Tr., Cr. ECF No, 368-9

at 1776:3-4; see also Presentence Investigation Report (“PSR”)

4

¶¶ 39, 48-50.) The Court sentenced Smith to 252 months in
prison followed by three years of supervised release.
(Sentencing Hr’g Tr., Cr. ECF No. 368-9 at 1779:20-25 –
1780:1.)
Smith filed a direct appeal to the Sixth Circuit.

He

challenged the Court’s denial of his motion to dismiss for
violation of his right to a speedy trial.

(United States v.

Smith, No. 11-5520 (6th Cir.), ECF Nos. 1, 62.)
Hunt was Smith’s appellate counsel.
62.)

William E.

(See id., ECF Nos. 20,

The Sixth Circuit affirmed on January 7, 2013.

No. 375.)

The mandate issued on January 29, 2013.

(Cr. ECF
(Cr. ECF

No. 376.)
Smith filed the § 2255 Motion on March 31, 2014.
1.)

(ECF No.

The Court ordered Smith to file an amended § 2255 Motion

on an official form on April 2, 2014.

(ECF No. 4.)

filed a timely amended motion on June 6, 2014.
Mot., ECF No. 5.)

Smith

(Am. § 2255

Smith moved to supplement his Amended § 2255

Motion on May 26, 2015.

(Supp. § 2255 Mot., ECF No. 17.)

Court granted that motion on November 7, 2016.

The

(ECF No. 22.)

In his Amended § 2255 Motion and his supplement, Smith states
eight grounds for relief: (1) ineffective assistance of
appellate counsel (Ground One) (Am. § 2255 Mot., ECF No. 5 at
34); (2) ineffective assistance of trial counsel (Grounds Two,

5

Three, Five, Six, and Seven) (id. at 35-37); (3) error by Trial
Judge (Ground Four) (id. at 38); and (4) application of Johnson
v. United States, 135 S. Ct. 2551 (2015) (Ground Eight)(Supp. §
2255 Mot., ECF No. 18 at 148).
On September 30, 2016, the U.S. Probation Office for the
Western District of Tennessee circulated a memorandum
addressing Smith’s sentence (the “Probation Memorandum”).

The

Probation Memorandum concludes that Smith is not entitled to
relief under Johnson.

(Probation Mem. at 1–2.)

It states that

Smith’s prior robbery and aggravated robbery convictions are
categorical violent felonies under the “use-of-force” clause of
the ACCA.

(Id. at 2.)

The Government filed a response to Smith’s supplement on
November 14, 2016, arguing that Smith is not entitled to
Johnson relief.

(ECF No. 23.)

The Government filed a response

to Smith’s Amended § 2255 Motion on June 9, 2017, arguing Smith
is not entitled to relief on any ground.

(ECF No. 27.)

Smith

filed a response and motion for evidentiary hearing on
September 5, 2017.
II.

(ECF No. 31.)

LEGAL STANDARDS
A.

Section 2255 Motions

Smith seeks relief under 28 U.S.C. § 2255.
Under § 2255(a),
6

(§ 2255 Mot.)

[a] prisoner in custody under sentence of a
court established by Act of Congress
claiming the right to be released upon the
ground that the sentence was imposed in
violation of the Constitution or laws of
the
United
States . . .
or
that
the
sentence was in excess of the maximum
authorized by law . . . may move the court
which imposed the sentence to vacate, set
aside or correct the sentence.
28 U.S.C. § 2255(a).
“To succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact
or

law

that

was

so

proceeding invalid.’”

fundamental

as

to

render

the

entire

McPhearson v. United States, 675 F.3d

553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States,
334 F.3d 491, 496–97 (6th Cir. 2003)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which the judgment
conviction becomes final;

(2)

the date on which the impediment to
making
a
motion
created
by
governmental action in violation of
the Constitution or laws of the United
States is removed, if the movant was
prevented from making a motion by such
governmental action;

(3)

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; or
7

of

(4)

the date on which the facts supporting
the claim or claims presented could
have
been
discovered
through
the
exercise of due diligence.

28 U.S.C. § 2255(f).
Ineffective assistance of counsel can serve as a ground
for § 2255 relief.

See, e.g., Campbell v. United States, 686

F.3d 353, 357 (6th Cir. 2012).

The standard for ineffective

assistance is provided by Strickland v. Washington, 466 U.S.
668 (1984).
defendant

To establish ineffective assistance, “[f]irst, the
must

deficient. . . .

show

that

Second,

the

counsel’s
defendant

performance

must

show

deficient performance prejudiced the defense.”

that

was
the

Id. at 687.

“Unless a defendant makes both showings, it cannot be said that
the conviction . . . resulted from a breakdown in the adversary
process that renders the result unreliable.”

Id.

To demonstrate deficient performance, a petitioner must
show that “counsel’s representation fell below an objective
standard of reasonableness.”

Id. at 688.

In considering an

ineffective-assistance claim, a court “must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide
range’

of

reasonable

professional

assistance. . . .

The

challenger’s burden is to show ‘that counsel made errors so
serious

that

counsel

was

not

functioning

as

the

guaranteed the defendant by the Sixth Amendment.’”

8

“counsel”
Harrington

v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466
U.S. at 687, 689).
To demonstrate prejudice, a petitioner must establish “a
reasonable probability that, but for counsel’s unprofessional
errors,

the

result

the

Strickland,

different.”

of

proceeding

466

U.S.

at

would

694.

have

“A

been

reasonable

probability is a probability sufficient to undermine confidence
in

the

outcome.”

Id.

“In

assessing

prejudice

under

Strickland, the question is not whether a court can be certain
counsel’s performance had no effect on the outcome or whether
it is possible a reasonable doubt might have been established
if

counsel

acted

differently. . . .

The

likelihood

of

a

different result must be substantial, not just conceivable.”
Richter, 562 U.S. at 111–12 (citing Wong v. Belmontes, 558 U.S.
15, 27 (2009); Strickland, 466 U.S. at 693).
“[A]

court

performance
suffered

was

by

not

deficient

the

deficiencies.”

need

defendant

determine

before
as

a

whether

examining
result

Strickland, 466 U.S. at 697.

the

of

the

counsel’s
prejudice
alleged

If a reviewing

court finds a lack of prejudice, it need not determine whether,
in fact, counsel’s performance was deficient.

Id.

“Surmounting Strickland’s high bar is never an easy task.”
Padilla

v.

Kentucky,

559

U.S.

Strickland, 466 U.S. at 689, 693).
9

356,

371

(2010)

(citing

An
ineffective-assistance
claim
can
function as a way to escape rules of waiver
and
forfeiture
and
raise
issues
not
presented at trial, and so the Strickland
standard must be applied with scrupulous
care, lest “intrusive post-trial inquiry”
threaten
the
integrity
of
the
very
adversary process the right to counsel is
meant to serve. Even under de novo review,
the
standard
for
judging
counsel’s
representation is a most deferential one.
Unlike
a
later
reviewing
court,
the
attorney observed the relevant proceedings,
knew of materials outside the record, and
interacted with the client, with opposing
counsel, and with the judge.
It is “all
too tempting” to “second-guess counsel’s
assistance after conviction or adverse
sentence.”
The question is whether an
attorney’s
representation
amounted
to
incompetence under “prevailing professional
norms,” not whether it deviated from best
practices or most common custom.
Richter,

562

[cannot]

be

U.S.

at

105

(citations

unconstitutionally

omitted).

ineffective

raise . . . meritless arguments.”

for

“Counsel
failing

to

Mapes v. Coyle, 171 F.3d

408, 427 (6th Cir. 1999).
After

a

petitioner

files

a

§ 2255

motion,

the

court

reviews it and, “[i]f it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must dismiss
the motion . . . .”

Rules Governing Section 2255 Proceedings

for the U.S. District Courts (“§ 2255 Rules”) at Rule 4(b).
“If the motion is not dismissed, the judge must order the
United States attorney to file an answer, motion, or other
10

response within a fixed time, or to take other action the judge
may order.”

Id.

The § 2255 movant is entitled to reply to the

government’s response.
considering

the

proceedings

at

Id. at Rule 5(d).

§ 2255
issue

motion

(e.g.,

also

the

Where the court

handled

change

the

of

plea

earlier
and

the

sentencing hearing), the court may rely on its recollection of
the proceedings.

See, e.g., James v. United States, No. 3:13-

01191, 2017 WL 57825, at *1 (M.D. Tenn. Jan. 4, 2017) (quoting
Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)).
B.

ACCA’s “Violent-Felony” Framework

Smith challenges the Court’s finding that he was an armed
career criminal under the ACCA.
convicted

under

18

U.S.C.

Under the ACCA, a defendant

§ 922(g)

who

has

three

prior

convictions for violent felonies or serious drug offenses is
subject
prison.

to

a

mandatory

minimum

18 U.S.C. § 924(e)(1).

sentence

of

180

months

in

Without the prior qualifying

convictions, a defendant convicted under § 922(g) is subject to
a statutory maximum sentence of 120 months.

Id. § 924(a)(2).

The ACCA defines “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (a) “has as
an

element

the

use,

attempted

use,

or

threatened

use

of

physical force against the person of another” (the “use-offorce clause”); (b) “is burglary, arson, or extortion, [or]
involves use of explosives” (the “enumerated-offenses clause”);
11

or

(c) “otherwise

involves

conduct

that

presents

a

serious

potential risk of physical injury to another” (the “residual
clause”).

Id. § 924(e)(2)(B).

In Johnson v. United States, the Supreme Court held that a
sentence imposed under the residual clause of the ACCA violates
due process.

135 S. Ct. at 2563.

In Welch v. United States,

the Supreme Court applied its holding in Johnson retroactively
to ACCA cases on collateral review.

136 S. Ct. 1257, 1268

(2016); see also In re Watkins, 810 F.3d 375, 383–84 (6th Cir.
2015) (same).
III. ANALYSIS
A.

Timeliness

A § 2255 motion and any amendments or supplements to it
must be filed within § 2255(f)’s one-year statute of
limitations.

See, e.g., Berry v. United States, No. 2:14-CV-

02070-STA-CGC, 2017 WL 401269, at *10 (W.D. Tenn. Jan. 30,
2017).

Under § 2255(f)(3), a petitioner must bring a § 2255

motion within one year of “the date on which the right asserted
was initially recognized by the Supreme Court . . . .”

The

§ 2255(f) statute of limitations is not jurisdictional, and the
Government can waive it.

See, e.g., Pittman v. United States,

No. 3:10-CR-1542-TAV-HBG, 2016 WL 3129198, at *2 (E.D. Tenn.

12

June 2, 2016); United States v. Miller, No. 6:13-7324-DCR, 2014
WL 4693689, at *6 (E.D. Ky. Aug. 28, 2014).
The opinion and order of the court of appeals was filed
on January 7, 2013.

No petition for certiorari was filed.

When a federal criminal defendant takes a direct appeal to the
court of appeals, his judgment of conviction becomes final for
§ 2255 purposes on the expiration of the 90-day period within
which the defendant could have petitioned for certiorari to the
Supreme Court, even when no certiorari petition has been filed.
Clay v. United States, 537 U.S. 522, 532 (2003).
conviction became final on April 7, 2013.

Smith’s

He filed his § 2255

motion on March 31, 2014, within one year of finality.

On

April 2, 2014, the Court ordered Smith to file an amended
motion because Smith had failed to file his original § 2255
Motion on the prescribed form.

(ECF No. 4.)

Smith filed his

Amended § 2255 Motion on June 6, 2014, more than thirteen
months after his conviction had become final.

Claims not

brought in his original § 2255 Motion are barred unless the
claims asserted “relate back” under Rule 15(c)(1)(B) of the
Federal Rules of Civil Procedure to a claim raised in the
original motion.

See Evans v. United States, 284 Fed.Appx.

304, 305, 313 (6th Cir. 2008); cf. Cowan v. Stovall, 645 F.3d
815, 819 (6th Cir. 2011).

13

Smith’s Amended § 2255 Motion asserts seven grounds for
relief.

(See Am. § 2255, ECF No. 5.)

Those grounds mirror

grounds one through seven in Smith’s original § 2255 Motion.
(See id.)

Smith’s Amended § 2255 Motion relates back to his

original § 2255 Motion under Rule 15(c).

Smith’s Amended

§ 2255 Motion is timely.
Johnson was decided on June 26, 2015.
Johnson relief was filed within one year.

Smith’s request for
Smith’s Johnson

claim is timely.
B. Challenges to Sentence and Conviction
Smith alleges eight grounds for relief: (1) ineffective
assistance of appellate counsel for failing to raise Hinton’s
coerced consent to search on direct appeal (Ground One) (Am. §
2255 Mot., ECF No. 5 at 34); (2) ineffective assistance of
trial counsel for refusing to assist Smith in filing a motion
to suppress and asking overly broad questions at the
suppression hearing (Ground Two)(see id. at 35); (3)
ineffective assistance of trial counsel for failure to impeach
Hinton (Ground Three) (id. at 37); (4) judicial error in
failing to grant a mistrial (Ground Four) (id. at 38); (5)
ineffective assistance of trial counsel for failure to file
objection to Magistrate Judge’s Report and Recommendation
(Ground Five) (id. at 44); (6) ineffective assistance of trial
14

counsel for asking questions about Smith’s criminal history on
direct examination (Ground Six) (id.);

(7) ineffective

assistance of trial counsel for failure to question Hinton
further after she had invoked her Fifth Amendment privilege
(Ground Seven) (id.); and (8) application of Johnson (Ground
Eight) (Supp. § 2255 Mot., ECF No. 18 at 148).
1.

Appeal-Related Claim: Ineffective Assistance of
Appellate Counsel (Ground One)

Ground One of the § 2255 Motion argues that Smith received
ineffective assistance of counsel on appeal.
at 34.)

(Am. § 2255 Mot.

Smith avers that Hunt failed to advance the Fourth

Amendment claim that Hinton’s consent to search was coerced.
(Id.)
Counsel's failure to raise an issue on appeal
amounts
to
ineffective
assistance
only
if
a
reasonable probability exists that inclusion of the
issue would have changed the result of the appeal.
If a reasonable probability exists that the defendant
would have prevailed had the claim been raised on
appeal, the court still must consider whether the
claim's merit was so compelling that the failure to
raise it amounted to ineffective assistance of
appellate counsel.
Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011) (internal
citations omitted).

An attorney need not advance every

argument, regardless of merit, urged by an appellant.

Jones v.

Barnes, 463 U.S. 745, 751-752 (1983)(“Experienced advocates
since time beyond memory have emphasized the importance of

15

winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.”)
Effective appellate advocacy is rarely characterized by raising
every frivolous argument that can be made.

Joshua v. DeWitt,

341 F.3d 430, 441 (6th Cir. 2003); Williams v. Bagley, 380 F.3d
932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005);
see Smith v. Murray, 477 U.S. 527 (1986).
It is well-recognized that adding weak arguments to an
appellate brief “will . . . dilute the force of the stronger
ones.”

Jones, 463 U.S. at 752 (quoting R. Stern, Appellate

Practice in the United States 266 (1981)).

“[I]f you cannot

win on a few major points, the others are not likely to help,
and to attempt to deal with a great many in the limited number
of pages allowed for briefs will mean that none may receive
adequate attention.”

Id.

“Generally, only when ignored issues

are clearly stronger than those presented will the presumption
of effective assistance of counsel be overcome.”

Monzo v.

Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (internal quotation
marks omitted) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th
Cir. 1986)).
Where defense counsel's “failure to litigate a Fourth
Amendment claim competently is the principal allegation of
ineffectiveness, [as it is here,] the defendant must also prove

16

that his Fourth Amendment claim is meritorious and that there
is a reasonable probability that the verdict would have been
different absent the excludable evidence in order to
demonstrate actual prejudice.”

Ray v. United States, 721 F.3d

758, 762 (6th Cir. 2013) (quoting Kimmelman v. Morrison, 477
U.S. 365, 375 (1986)).
Smith’s Fourth Amendment claim lacks merit, and there is
no reasonable probability that the result would have been
different.

Smith advanced the same argument -- that Hinton was

coerced into giving consent -- at the suppression hearing and
in Smith’s objection to the Magistrate Judge’s Report.

Smith’s

argument is based on recorded telephone conversations in which
Hinton said she cooperated because the agents promised her they
would let Smith go if she did.

(ECF No. 267 at 881 (citing

Report and Recommendation n.10).)

Neither the Magistrate Judge

nor the Court found Hinton’s statements credible, given that in
the recordings Hinton falsely told Smith that she did not tell
agents Smith was involved in counterfeiting, notwithstanding
the fact that she wrote and signed a statement describing
Smith’s role in the counterfeiting operation.

(Id. at 881-82.)

Hinton’s testimony at trial lends no greater weight to
Smith’s argument.

Leffler moved for mistrial on the basis that

Hinton’s trial testimony would have changed the decision on the

17

suppression motion.
2082:1-3.)

(Trial Tr., ECF No. 369-1 at 2081:1-25 –

The Court denied that motion, finding that “had her

testimony been heard at the suppression hearing . . . the
motion still would have been denied.”

(Id. at 2083:9-24.)

Hinton’s previous false statements in conjunction with her
confused testimony that she “thought [she] heard” or did hear a
promise by law enforcement to release her and Smith in exchange
for the counterfeiting printer (id. at 2067:16-25 – 2068:1-3)
did not establish that Hinton’s consent was coerced.

After

review of the record, the Court has not changed its position.
It is not reasonably probable that Smith would have prevailed
on this claim had it been raised on appeal.
Smith is not entitled to habeas relief on his claim for
ineffective assistance of appellate counsel.
2.

Trial-Related Claims: Ineffective Assistance of Trial
Counsel & Abuse of Discretion (Grounds Two, Three,
Four, Five, Six, and Seven)

Grounds Two, Three, Five, Six, and Seven of the Amended
§ 2255 Motion argue that Smith received ineffective assistance
of trial counsel.

(Am. § 2255 Mot. at 35-44.)

Ground Four

argues that the trial court abused its discretion by failing to
grant a mistrial.

(Id. at 38.)

procedurally defaulted.

18

Each of those claims is

It is well-established that a § 2255 motion “is not a
substitute for a direct appeal.”

Regalado v. United States,

334 F.3d 520, 528 (6th Cir. 2003) (citing United States v.
Frady, 456 U.S. 152, 167–68 (1982)).

Claims that could have

been raised on direct appeal, but were not, will not be
entertained by motion under § 2255 unless the petitioner shows:
(1) cause and actual prejudice to excuse his failure to raise
the claims previously; or (2) that he is “actually innocent” of
the crime.

Bousley v. United States, 523 U.S. 614, 622, 118

S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal citations
omitted).

Ineffective assistance of appellate counsel may

establish cause to excuse procedural default.

See Edwards v.

Carpenter, 529 U.S. 446, 451-52 (2000); see also Burroughs v.
Makowski, 411 F.3d 665, 668 (6th Cir. 2005).
Smith directly appealed only one issue: violation of his
right to a speedy trial.

Smith did not raise any of the issues

he brings in his Amended § 2255 Motion on direct appeal.

Smith

does not assert that he is actually innocent of the crimes for
which he was convicted, but argues that his appellate counsel's
ineffectiveness excuses his failure to assert his abuse of
discretion and ineffective assistance of trial counsel claims.
(ECF No. 18 at 147.)

19

Smith’s argument is unavailing.

Smith’s appellate counsel

was not ineffective, and Smith he was not actually prejudiced
by any ineffective assistance of appellate counsel.

Smith’s

grounds for relief are meritless.
a.

Ineffective Assistance of Trial Counsel (Grounds
Two, Three, Five, Six, and Seven)

“Judicial review of the lawyer's performance must be
highly deferential, and indulge a strong presumption that a
lawyer's conduct in discharging his duties falls within the
wide range of reasonable professional assistance, since
reasonable lawyers may disagree on the appropriate strategy for
defending a client.”

Bigelow v. Williams, 367 F.3d 562, 570

(6th Cir. 2004) (internal quotation marks omitted).

“A

strategic decision cannot be the basis for a claim of
ineffective assistance unless counsel's decision is shown to be
so ill-chosen that it permeates the entire trial with obvious
unfairness.”

Hughes v. United States, 258 F.3d 453, 457 (6th

Cir. 2001).
On Ground Two, Smith contends that Leffler refused to
assist Smith in filing a motion to suppress and asked Smith
questions during the suppression hearing that “went beyond
proving standing.”

(Am. § 2255 Mot. at 35-36.)

does not support Smith’s contention.

The record

Leffler filed a motion to

suppress, represented Smith during the hearing, and filed an
20

objection to the Magistrate Judge’s Report.

The record

demonstrates that Leffler assisted Smith in filing a motion to
suppress.

Smith also contends that Leffler asked Smith

questions during “the suppression hearing that were tantamount
to claiming ownership of the residence when this wasn’t
required[,]” which “[t]he government used . . . against [Smith]
during [trial]. . . ” to prove Smith’s constructive possession
of a firearm.

(Supp. § 2255 Mot. at 268.)

receives Fourth Amendment protection.

An overnight guest

Minnesota v. Olson, 495

U.S. 91, 96–97, (1990); United States v. Washington, 573 F.3d
279, 283 (6th Cir. 2009) (“The Sixth Circuit has generously
construed the Fourth Amendment as protecting nearly all
overnight guests....”).

During the hearing, Leffler asked

Smith whether he lived at the property, had possessions there,
and had access to the property in Hinton’s absence.
(Suppression Hr’g Tr., Cr. ECF No. 251 at 520-24.)

Leffler’s

questions were designed to establish that Smith had a
reasonable expectation of privacy and thus standing to bring a
motion to suppress.
Smith.

Leffler’s questions did not prejudice

Even if Leffler had limited his inquiry to Smith’s

overnight status, Leffler would have opened the door for the
Government to explore Smith’s relation to the property.

The

Government would then have had evidence to establish Smith’s
actual or constructive possession of the firearm.
21

The

Strickland test is not satisfied by Leffler’s supposed refusal
to assist in filing a motion to suppress or his asking
questions to establish standing.
On Ground Three, Smith contends that Leffler failed to
impeach Hinton during trial.

(Am. § 2255 Mot. at 37.)

A

review of the record demonstrates that Leffler competently
attacked Hinton’s credibility.

Leffler thoroughly explored the

reliability of Hinton’s testimony during cross-examination,
exposing a prior inconsistent statement in which Hinton
initially told agents the gun belonged to her, although she
later claimed it belonged to Smith.

(Trial Tr., Cr. ECF No.

368-8 at 1720-22; Trial Tr., Cr. ECF No. 369 at 2065:1-11.)
Leffler also elicited from Hinton that she believed if she
showed law enforcement the counterfeiting printers they would
let her and Smith go.
3.)

(ECF No. 369-1 at 2067:16-25 – 2068:1-

During closing argument, Leffler contended that Hinton’s

veracity was highly questionable given her interest in a lesser
sentence.
2167:1-13.)

(Trial Tr., Cr. ECF No. 369-1 at 2166:21-25 –
Leffler’s questioning and closing reasonably

communicated to the jury that a possible, if not probable,
motivation for Hinton’s testimony was a desire to receive a
reduced sentence, rather than a desire to tell the truth.

22

Even if Leffler’s impeachment strategy had been deficient,
the Court's instructions to the jury clarified that the
Hinton’s testimony was to be viewed with skepticism:
You’ve heard the testimony of [co-defendant] Regina
Hinton. You have also heard that she was involved in
the same crime that the defendant is charged with
committing.
You should consider Ms. Hinton’s
testimony with more caution than the testimony of
other witnesses.
Do not convict the defendant
[Smith] based on the unsupported testimony of such a
witness standing alone unless you believe her
testimony beyond a reasonable doubt.
(Trial Tr., Cr. ECF No. 369-1 at 2183:14-21.)

Leffler attacked

Hinton’s credibility, and Smith was not prejudiced by Leffler’s
method of impeaching Hinton.
Smith’s claim that a more formal, effective, or aggressive
impeachment would have yielded a different result is highly
speculative.

He cites no facts that could have been elicited

by a more effective or aggressive form of impeachment.

He does

not argue that Leffler had information with which he could have
impeached Hinton, but which he failed to use.

“The idea that

trial counsel may have been ‘more effective[ ]’ in his
impeachment had he taken another course is precisely the sort
of second-guessing of a tactical judgment that Strickland
counsels against.”

Moss v. Olson, No. 15-2233, 2017 WL

2790682, at *7 (6th Cir. June 27, 2017) (citing Esparza v.
Sheldon, 765 F.3d 615, 624 (6th Cir. 2014)).

23

On Ground Five, Smith argues that Leffler failed to file
an objection to the Magistrate Judge’s Report and
Recommendation following the suppression hearing.
at 44.)

(ECF No. 5

The docket reflects that Leffler filed a timely

objection on October 5, 2010.
Tenn.), ECF No. 264.)

(2:08-cr-20201-SHM-tmp (W.D.

Smith’s ineffective assistance of

counsel claim on this ground fails.
On Ground Six, Smith claims that Leffler’s questions about
Smith’s criminal history on direct examination reduced Smith’s
credibility.

(Am. § 2255 Mot. at 44.)

A trial counsel's

decision to elicit evidence on direct examination that his
client has a criminal history is well within the ambit of
reasonable trial strategy, a decision generally taken “to
soften the anticipated blow in the eyes of the jury.”

See

United States v. Williams, 939 F.2d 721, 723–25 (9th Cir.
1991).

Leffler’s affidavit states that “the questions about

[Smith’s] criminal history [were] an element of trial strategy
to blunt the effect of those disclosures during cross
examination.”

(ECF No. 27-1 ¶ 15.)

Smith’s attempt to

establish ineffective assistance based on Leffler’s direct
examination of Smith is a criticism of counsel's trial
strategy.

It is not an appropriate ground for habeas relief.

24

On Ground Seven, Smith argues that Leffler was ineffective
for failing to question Hinton further at the suppression
hearing after she had invoked the Fifth Amendment and for
failing to ask the court to determine whether Hinton’s answers
would be incriminating.

(Am. § 2255 Mot. at 44.)

Decisions

about whether, and to what extent, to cross-examine witnesses
are almost exclusively “strategic” decisions of counsel and are
“effectively insulated” from review.

Leonard v. Warden, Ohio

State Penitentiary, 846 F.3d 832, 848 (6th Cir. 2017)
(“Counsels traditionally enjoy ‘discretion over deciding which
witnesses to call and how to examine them.’” (quoting Carter v.
Mitchell, 829 F.3d 455, 471 (6th Cir. 2016)); Hurley v. United
States, 10 F. Appx. 257, 260 (6th Cir. 2001). “To be entitled
to habeas relief on this claim, [Smith] must demonstrate that
he was actually prejudiced by counsel's failure to ask more
questions, not simply raise the possibility that additional
questions might have elicited additional or different
responses . . . .”

Hand v. Houk, No. 2:07-CV-846, 2013 WL

5211718, at *14 (S.D. Ohio Sept. 16, 2013).
Smith fails to demonstrate prejudice.

As the Magistrate

Judge correctly noted at the suppression hearing, it was
obvious that Hinton’s “testimony would be directly tied into
the events surrounding her and Mr. Smith’s arrest, as well as
searches that are at issue in connection with the motion to
25

suppress.”

(Suppression Hr’g Tr., ECF No. 251 at 626:11-15.)

Additional questions about the suppression of evidence would
have fallen within the scope of Hinton’s Fifth Amendment
privilege.

See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.

2000) (“The Supreme Court has given the privilege against selfincrimination a broad scope, explaining that ‘[i]t can be
asserted in any proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory; and it protects
against any disclosures that the witness reasonably believes
could be used in a criminal prosecution or could lead to other
evidence that might be so used.’” (quoting Kastigar v. United
States, 406 U.S. 441, 445-45 (U.S. 1972))).

Leffler’s

strategic decision to excuse Hinton after she had invoked her
Fifth Amendment privilege did not prejudice Smith.
Applying the Strickland test for ineffective assistance of
counsel, Smith has failed to show that Leffler’s actions
prejudiced Smith or that Leffler’s performance was deficient on
any of the grounds Smith asserts.

Smith is not entitled to

habeas relief on any of his ineffective assistance of trial
counsel claims.
b.

Abuse of Discretion (Ground Four)

On Ground Four, Smith argues that the “judge fail[ed] to
grant mistrial.”

(Am. § 2255 Mot. at 38.)

26

Smith avers that,

because Hinton testified at trial that she had “only consented
to [the] search after Secret Service Agents promised her that
they would release” Smith, a mistrial should have been granted.
(Id.)

Smith challenges the Court’s denial of his motion for

mistrial because Hinton’s trial testimony undercut the basis
for the probable cause justifying the search.

A district

court’s denial of a motion for mistrial is reviewed for abuse
of discretion.

United States v. Shepard, 739 F.3d 286, 292

(6th Cir. 2014).
The Court found during trial that Hinton’s trial testimony
would not have changed the outcome of the suppression hearing
and denied Smith’s request for mistrial.

Hinton’s previous

false statements in conjunction with her confused testimony
that she “thought [she] heard” or did hear a promise by law
enforcement to release her and Smith in exchange for the
counterfeiting printer (Trial Tr., ECF No. 369-1 at 2067:16-25
– 2068:1-3) did not establish that Hinton’s consent was
coerced.

Smith has failed to show that the trial court's

failure to declare a mistrial was an abuse of discretion.
Smith is not entitled to habeas relief on this claim.
3.

Johnson Challenge (Ground Eight)

Smith argues that his sentence should be corrected because
his prior convictions for robbery and felony evading arrest are

27

not predicate offenses after Johnson.
No. 18 at 148.)

(Supp. § 2255 Mot., ECF

The Government argues that Smith’s two

convictions for aggravated robbery (amended to robbery) and two
convictions for aggravated robbery qualify as predicate
offenses under the ACCA’s use-of-force clause.

(ECF No. 23 at

164.)
Binding Sixth Circuit precedent holds that Tennessee
robbery and aggravated robbery categorically qualify as crimes
of violence under the ACCA’s use-of-force clause.

See, e.g.,

United States, v. Braswell, No. 16-6092, 2017 WL 3588305, at
*14 (6th Cir. Aug. 21, 2017) (“Indeed, this Court has
repeatedly held that aggravated robbery under Tennessee law is
a violent felony under the ‘use of force’ clause of the
ACCA.”); United States v. Bailey, 634 Fed.Appx. 473, 476 (6th
Cir. 2015) (“Tennessee convictions for aggravated robbery and
robbery are categorically violent felonies under the ACCA's
use-of-physical-force clause.”); United States v. Mitchell, 743
F.3d 1054, 1058–60 (6th Cir. 2014) (holding that all forms of
Tennessee robbery are categorically violent felonies under the
ACCA's use-of-physical-force clause); United States v. Gloss,
661 F.3d 317, 319 (6th Cir. 2011); see also United States v.
Kemmerling, 612 Fed.Appx. 373, 375–76 (6th Cir. 2015)

28

(reiterating that Johnson does not affect the use-of-force
clause).
Smith’s prior robbery and aggravated robbery convictions
are predicate offenses under the ACCA.

Smith is not entitled

to Johnson relief.
IV.

MOTION FOR EVIDENTIARY HEARING
Smith is not entitled to habeas relief on any ground.

His

request for an evidentiary hearing is DENIED.
V.

APPEALABILITY
Twenty-eight U.S.C. § 2253(a) requires a district court to

evaluate the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (“COA”)
“only if the applicant has made a substantial showing of the
denial of a constitutional right.”
also Fed. R. App. P. 22(b).

28 U.S.C. § 2253(c)(2); see

No § 2255 movant may appeal

without this certificate.
The COA must indicate the specific issue or issues that
satisfy the required showing.

28 U.S.C. §§ 2253(c)(2) & (3).

A “substantial showing” is made when the movant demonstrates
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
29

deserve encouragement to proceed further.”

Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks
and citation omitted); see also Henley v. Bell, 308 F. App’x
989, 990 (6th Cir. 2009) (per curiam).

A COA does not require

a showing that the appeal will succeed.

Miller-El, 537 U.S. at

337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir.
2011).

Courts should not issue a COA as a matter of course.

Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
In this case, Smith is not entitled to relief under
Johnson.

He cannot present a question of some substance about

which reasonable jurists could differ.

The Court DENIES a

certificate of appealability.
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to
appeals of orders denying § 2255 motions.
117 F.3d 949, 951 (6th Cir. 1997).

Kincade v. Sparkman,

Rather, to appeal in forma

pauperis in a § 2255 case, and thereby avoid the appellate
filing fee required by 28 U.S.C. §§ 1913 and 1917, a prisoner
must obtain pauper status pursuant to Federal Rule of Appellate
Procedure 24(a).

Kincade, 117 F.3d at 952.

Rule 24(a)

provides that a party seeking pauper status on appeal must
first file a motion in the district court, along with a
supporting affidavit.

Fed. R. App. P. 24(a)(1).

30

However, Rule

24(a) also provides that if the district court certifies that
an appeal would not be taken in good faith, or otherwise denies
leave to appeal in forma pauperis, a prisoner must file his
motion to proceed in forma pauperis in the appellate court.
See Fed. R. App. P. 24(a) (4)-(5).
In this case, because Smith is clearly not entitled to
relief, the Court denies a certificate of appealability.

It is

CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in
good faith.
VI.

Leave to appeal in forma pauperis is DENIED. 2

CONCLUSION
For the foregoing reasons, the Amended § 2255 Motion is

DENIED.

Smith’s request for relief under Johnson and request

for an evidentiary hearing are also DENIED.
So ordered this 14th day of September, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE

2

If Smith files a notice of appeal, he must also pay the appellate
filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within 30 days.

31