Martrice Smith v. USA

Filing 17

MEMORANDUM ORDER adopting 13 Report and Recommendation and denying 12 Motion to alter or amend the judgment. Signed by Judge Ron Clark on 10/11/2016. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
MARTRICE SMITH

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v.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 6:15cv176

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND DENYING MOTION TO ALTER OR AMEND THE JUDGMENT
The Movant Martrice Smith filed this motion to vacate or correct sentence under 28 U.S.C.
§2255 complaining of the legality of his conviction. This Court ordered that the case be referred to
the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order
for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Factual Background
Smith was convicted on March 12, 2012, upon his plea of guilty to the offense of possession
of a firearm by a felon. His appeal was dismissed as frivolous on April 16, 2013, after counsel filed
a brief in accordance with Anders v. California, 386 U.S. 738 (1967).
Almost two years later, on March 6, 2015, Smith filed his §2255 motion to vacate, arguing
that he received ineffective assistance of counsel, his guilty plea was induced by the court’s
violations of Fed. R. Crim. Pro. 11, and the Magistrate Judge, the Hon. Judith Guthrie, erred by not
granting his motion for new counsel. He also complained that the Magistrate Judge interfered in
plea negotiations and his attorney, Wayne Dickey, failed to object to this interference.
Smith’s §2255 motion was referred to United States Magistrate Judge Nicole Mitchell, who
ordered Smith to show cause why his motion to vacate should not be dismissed as barred by the
statute of limitations. Smith argued in response that newly discovered evidence has a limitations
period running from the date of discovery. He stated that he purchased the transcript of the change
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of counsel hearing on April 3, 2014, and received it on April 8, 2014, and the limitations period
should begin to run at that time. Smith also argued that he was actually innocent and that no
reasonable juror would have convicted him in light of the new evidence proving Magistrate Judge
Guthrie participated in the plea negotiations in violation of Rule 11.
Magistrate Judge Mitchell reviewed Smith’s pleadings and determined that the statute of
limitations had expired. In so holding, the Magistrate Judge concluded that transcripts in criminal
cases are not the type of newly discovered evidence contemplated by the limitations statute, the date
Smith received the transcript did not start the limitations period even had Smith shown cause why
he could not have obtained the transcript in a timely manner. Smith did not show any other basis
for tolling of the limitations period, and Smith did not present a colorable claim of actual
innocence. Smith’s objections to the Magistrate Judge’s Report were overruled and his motion to
vacate was dismissed on March 22, 2016.
II. The Motion to Alter or Amend the Judgment
Smith subsequently filed a motion to alter or amend the judgment, pointing to oral argument
before the Supreme Court in United States v. Davila, 133 S.Ct. 2139 (2013). In that case, the trial
court held an in camera hearing on the defendant’s motion for new counsel after the defendant
complained that his attorney offered no strategy and did not mention a defense to the charges, but
simply advised him to plead guilty. The magistrate judge who presided over the hearing told the
defendant that he would not get another attorney, sometimes pleading guilty is the best advice an
attorney can give his client, it might be a good idea for Davila to plead guilty because there might
not be a viable defense to the charges, and Davila should cooperate with the Government in order
to obtain a downward departure.
Smith quoted Justice Ginsberg as stating at oral argument that the defendant did not know
about Rule 11, was not aware that the judge is not supposed to participate in plea bargaining, and
defense counsel wanted the defendant to take a plea and therefore did not tell his client that the
judge was doing something wrong. Justice Kennedy and Justice Sotomayor made similar remarks.
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Smith appeared to argue that as in the comments made by these justices, he had no way of knowing
about the Rule 11 violation, implying that the limitations period should start at a later point in time
than when he learned of the facts underlying his claim.
III. The Magistrate Judge’s Report
The Magistrate Judge discussed the facts of the Davila case and observed that according to
the Supreme Court, the magistrate judge’s interference in the plea negotiations was “beyond the
pale” and violated Fed. R. Crim. Pro. 11. Nonetheless, the Supreme Court held that a Rule 11
violation was not automatic reversible error, despite the comments made at oral argument.
Furthermore, the Magistrate Judge observed that Smith’s case is in a different procedural
posture because Davila was a direct appeal from the denial of a motion to vacate the guilty plea,
while Smith is seeking to overcome the statute of limitations on collateral review.
While Smith pointed to the justices’ comments at oral argument regarding the defendant’s
lack of knowledge of the legal significance of a violation of Rule 11, the Magistrate Judge stated that
the lack of awareness of the legal significance of the operative facts is not relevant to a discussion
of the statute of limitations. 28 U.S.C. §2255 provides that the limitations period shall run from the
latest of: (1) the date the judgment of conviction becomes final; (2) the date on which an 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 (4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence. Under the plain language of the
statute, the limitations period begins when the movant knows, or through diligence could discover,
the important facts, not when the movant recognizes their legal significance. Owens v. Boyd, 235
F.3d 356, 359 (7th Cir. 2000).

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Smith was present in court when Magistrate Judge Guthrie’s alleged involvement in the plea
process was discussed. He knew or should have known the factual basis for his claim at that time,
not when he obtained a copy of the transcript or learned the legal significance of the facts. See also
U.S. v. Nickles, criminal action no. 03-346, 2006 WL 3246911 (E.D.La., November 7, 2006)
(rejecting movant’s claim that the statute of limitations began to run when he learned the operative
facts at his sentencing, not when he recognized their legal significance); Fultz v. United States, civil
action no. 2:05cv175, 2006 WL 3832850 (M.D.Ala., December 28, 2006) (sentencing transcript is
not “newly discovered evidence” and in any event, the movant was present at the hearing and thus
aware of the facts supporting her claim). The Magistrate Judge therefore recommended that Smith’s
motion to alter or amend the judgment be denied.
IV. Smith’s Objections to the Report
In his objections, Smith first discusses his direct appeal, arguing that the Fifth Circuit
committed plain error on direct appeal by dismissing the Rule 11 violation. Aside from the fact
that the district court has no authority to correct alleged errors on the part of the Fifth Circuit, this
contention is irrelevant to the discussion of Smith’s motion to vacate or correct sentence under 28
U.S.C. §2255.
Smith next asserts that he “disagrees with the Magistrate Judge K. Nicole Mitchell, that
Smith ‘knew or should have known,’ but Smith concurs with the Supreme Court Justice’s opinion
that Smith ‘doesn’t know and couldn’t know.’” The comments made at oral argument to which
Smith alludes are not part of the opinion of the Court, which reversed the Eleventh Circuit’s holding
that a trial court’s violation of Rule 11 required automatic vacatur of the guilty plea.
In addition, Smith indicates that the comments at oral argument referred to the defendant’s
knowledge of the legal significance of the magistrate judge’s alleged violation of Rule 11. In the
present case, the Magistrate Judge properly concluded that Smith knew or should have known of the
factual basis of his claim at the time of the hearing, which is the relevant consideration for purposes
of the statute of limitation. Smith’s objection on this basis is without merit.
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Smith next refers to a motion he filed in May of 2014 seeking an extension of time to file a
§2255 motion to vacate sentence, as well as a request for other transcripts. This motion was denied
by U.S. District Judge Michael Schneider, who determined that federal courts lack jurisdiction to
consider the timeliness of a §2255 motion until the motion is actually filed. The District Judge also
concluded that Smith provided no basis for his request for transcripts because his appeal had already
been dismissed as frivolous and he did not advance any basis for relief under §2255.
According to Smith, the District Judge’s conclusion that he did not advance any basis for
relief under §2255 in his motion for extension of time shows that he did not know the factual basis
for his Rule 11 claim. On the contrary, Smith’s motion for extension of time did not set out any
grounds which he intended to raise in a §2255 proceeding, thus leading to the conclusion that he did
not advance any basis for relief under §2255. Smith has not shown that the ruling on his motion for
extension of time was in error or otherwise provides him a basis for avoiding the statute of
limitations. His objection on this ground is without merit.
Third, Smith argues that he showed due diligence because it was his diligence which made
the Rule 11 violation known. He asks how one lacking knowledge of the law to recognize a Rule
11 violation can exercise due diligence to uncover the error. Regardless of Smith’s argument, the
law is clearly established that it is when the movant learns of the fact giving rise to a claim for relief,
not when he learns of the legal significance of this fact, which triggers the limitations period.
Otherwise, prisoners could allege ignorance of the law until an illuminating conversation with an
attorney or fellow prisoner, and thereby in effect write the statute of limitations out of the AEDPA
and render it a nullity. United States v. Pollard, 416 F.3d 48, 55 (D.C.Cir. 2005).
Smith’s lack of due diligence stems from the fact that he was present in court when the
alleged involvement by the Magistrate Judge was discussed and therefore knew or should have
known of the factual basis for his claim at that time, not when he obtained a copy of the transcript
or learned of the legal significance of the facts; however, Smith waited almost two years from the

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date his conviction became final in which to seek §2255 relief. His objection on this point is without
merit.
Next, Smith maintains that the purpose of the AEDPA was to prevent courts from being
swamped with meritless issues, not to stop defendants from bringing meritorious claims. According
to the Fifth Circuit, the limitations period was enacted “to bring regularity and finality to federal
habeas proceedings.” Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir. 1998); see also Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998). The federal courts do not review the merits of claims
prior to making a determination as to whether or not such claims are time-barred. Smith’s objection
on this point is without merit.
Finally, Smith again discusses the facts surrounding his guilty plea, including the alleged
interference by Magistrate Judge Guthrie in the plea proceeding. He states that after the proceeding
in which the remarks showing the interference occurred, a change of plea hearing was held for a plea
agreement he had previously rejected and did not agree to. He was then indicted alone in a
superseding indictment and some 48 days after the judge’s intervention, he entered a notice of plea
agreement. Smith further contends that his attorney, Wayne Dickey, had material evidence in the
form of a letter from a key witness proving misconduct by the police, but never brought it the court’s
attention.
These allegations make clear that Smith knew or should have known of the alleged
misconduct at the time it occurred. The statute of limitations therefore began to run at the time
Smith’s conviction became final, on Monday, July 13, 2013, and expired on Tuesday, July 15, 2014,
well before he sought §2255 relief. Smith’s objections fail to show any basis to alter or amend the
final judgment and are without merit.
V. Movant’s Motion to Supplement Objections
Smith has also filed a motion to supplement his objections with an additional argument. In
this motion, Smith asserts that he had a conflict of interest with his attorney. He states Dickey
permitted misconduct to occur because he, Dickey, wanted the government and the court to
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intervene in the plea negotiations. Smith further complains that Dickey never presented a defensive
strategy but kept asking Smith what was their defense. He states that at the change of plea hearing,
it is on record that he never agreed to take the plea agreement unless he got his right to appeal, and
Dickey told the court that the Fifth Circuit did not give the right to appeal on a plea agreement.
Smith states that he still rejected the plea agreement and the prosecutor moved to supersede
the indictment. He contends Dickey abandoned meritorious grounds on appeal because these would
reveal his malfeasance and incompetence, but instead filed an Anders brief. Smith again refers to
the letter from his co-defendant which Dickey received from Smith but would not present to the
court and argues that based on counsel’s conflict of interest, he, Smith, had no real lawyer secured
to him by the Sixth Amendment.
All of the facts recited by Smith in his motion to supplement were known or should have
been known by him at the time the events occurred. Smith has shown no reason why the allegations
raised in his motion to supplement should serve to toll the limitations period. He has not
demonstrated any statutory basis for tolling under 28 U.S.C. §2255 nor shown the rare and
exceptional circumstances required to invoke equitable tolling. See United States v. Petty, 530 F.3d
361, 366 (5th Cir. 2008) (proceeding pro se, lack of legal training, and unfamiliarity with the legal
process are insufficient reasons to equitably toll the statute of limitations). Nor has Smith set out
a colorable claim of actual innocence. McQuiggin v. Perkins, 133 S.Ct. 1924, 1928, 185 L.Ed.2d
1019 (2013). His objections are without merit.
V. Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate Judge’s
proposed findings and recommendations to which objection was made. See 28 U.S.C. §636(b)(1)
(District Judge shall “make a de novo determination of those portions of the Report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the Report of the Magistrate Judge is correct and the Movant’s
objections are without merit. It is accordingly
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ORDERED that the Movant’s objections are overruled and the Report of the Magistrate
Judge (docket no. 13) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the Movant’s motion to alter or amend the judgment (docket no. 12) is
DENIED.

So ORDERED and SIGNED this 11 day of October, 2016.

___________________________________
Ron Clark, United States District Judge

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