Smith v. USA

Filing 22

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 17 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING 1 PETITIONER'S MOTION AND OVERRULING PETITIONER'S OBJECTIONS: Adopting 17 Report and Recommendations re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Lonnie Anthony Smith; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 5/2/16. (copy to Petitioner by cert. mail)(soa) (Additional attachment(s) added on 5/2/2016: # 1 Certified Mail Return Receipt) (soa).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LONNIE ANTHONY SMITH,
Petitioner,
v.

Civil Action No. 5:13CV63
(Criminal Action No. 5:09CR7-01)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S MOTION AND
OVERRULING PETITIONER’S OBJECTIONS
The petitioner, Lonnie Anthony Smith (“Smith”), filed this pro
se1 motion under 28 U.S.C. § 2255 challenging the validity of his
conviction and sentence. This matter was referred to United States
Magistrate Judge Robert W. Trumble.

The magistrate judge issued a

report recommending that this Court deny the motion.

Smith filed

objections to the report and recommendation.

For the following

reasons,

the

this

recommendation,

Court
denies

adopts

and

affirms

the

motion,

and

report

overrules

and

Smith’s

objections.
I.

Background

After a bench trial, Smith was convicted of conspiracy to
distribute over one kilogram of heroin, interstate travel in aid of

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

heroin racketeering, and use of a telephone to facilitate the
distribution of heroin.

This Court sentenced Smith to 262 months

of imprisonment.

Smith appealed, and the United States Court of

Appeals

Fourth

for

the

Circuit

affirmed

his

conviction

and

sentence.
Smith

then

filed

this

motion

under

28

U.S.C.

§

2255

challenging the validity of his conviction and sentence on the
ground of ineffective assistance of counsel.

Specifically, Smith

argues: (1) that his counsel was ineffective for failing to present
evidence and argument at a pretrial suppression hearing; (2) that
counsel was ineffective in failing to challenge the government’s
evidence at trial through cross-examination and in failing to
present evidence to show that Smith was not engaged in the charged
conspiracy;

(3)

that

counsel

was

ineffective

in

failing

to

challenge the government’s evidence and present evidence to show
that Smith did not cause an informant to travel across state lines;
(4)

that

counsel

failed

to

challenge

an

allegedly

improper

calculation of the range of imprisonment under the United States
Sentencing Guideline; and (5) that counsel was ineffective in not
challenging this Court’s findings of fact regarding application of
sentencing enhancements.

Magistrate Judge Trumble issued a report

recommending that this Court deny Smith’s motion because Smith
failed to demonstrate that his counsel was ineffective or that

2

Smith was prejudiced by any ineffective assistance.

Smith timely

filed objections to the report and recommendation.
II.

Applicable Law

Because the petitioner timely filed objections to the report
and recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which objections were
made.

28 U.S.C. § 636(b)(1)(C).

As to those findings to which

objections were not filed, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

In his motion, Smith alleges that his counsel was ineffective
in various ways.

The magistrate judge concluded that Smith failed

to demonstrate that his counsel’s performance was deficient or that
any

deficient

performance

prejudiced

Smith’s

defense.

Smith

objects to each of these conclusions and represents that he knows
of evidence substantiating his claims but has been unable to obtain
affidavits or other proof that the evidence exists.
A.

Ineffective Assistance of Counsel
“[A] movant seeking collateral relief from his conviction or

sentence through an ineffective assistance claim must show (1) that
his

counsel’s

performance

was

deficient[,]

deficiency prejudiced his defense.”

and

(2)

that

the

United States v. Basham, 789

F.3d 358, 371 (4th Cir. 2015) (citing Strickland v. Washington, 466

3

U.S. 668, 687 (1984)).

Counsel’s performance was deficient if

“counsel’s representation fell below an objective standard of
reasonableness

.

.

.

under

Strickland, 466 U.S. at 688.

prevailing

professional

norms.”

There is a “strong presumption that

counsel’s representation was within the wide range of reasonable
professional assistance.”
(2011)

(internal

Harrington v. Richter, 562 U.S. 86, 104

quotation

marks

omitted).

“The

Strickland

standard is difficult to satisfy, in that the ‘Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged with
the benefit of hindsight.’”

Basham, 789 F.3d at 371 (quoting

Yarborough v. Gentry, 540 U.S. 1, 8 (2003)).

To show prejudice,

“[t]he movant must demonstrate ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would

have

been

different.

A

reasonable

probability

is

a

probability sufficient to undermine confidence in the outcome.’”
Id. (quoting Strickland, 466 U.S. at 694).
First, Smith argues that his counsel provided ineffective
representation at the pretrial suppression hearing because he
failed to present evidence and argument.

Magistrate Judge Trumble

concluded that at the suppression hearing Smith’s counsel crossexamined witnesses and argued that the use of a single photograph
of Smith for eyewitness identification was impermissibly suggestive
and unreliable.

Smith does not point out any additional evidence

or arguments that his counsel should have presented. The fact that

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Smith’s counsel was unsuccessful in having the evidence suppressed
is not sufficient to demonstrate ineffective assistance.
Second, Smith argues that his counsel was ineffective in
failing to challenge the government’s evidence at trial and by
failing to present evidence that Smith was not engaged in the full
scope of the charged conspiracy.
examined

the

credibility.

government’s
Further,

Smith

However, Smith’s counsel cross-

witnesses
does

not

and

challenged

identify

evidence that his counsel failed to present.

any

their

specific

Even if Smith’s

counsel failed to present some evidence, without showing what that
evidence would have been, Smith cannot show that its presentation
would be “sufficient to undermine confidence in the outcome” of his
trial.

Id. (internal quotation marks omitted).

Third, Smith argues that his counsel was ineffective in
defense against the interstate travel charge because he failed to
present evidence that Smith did not cause a confidential informant
to travel.

The government presented a recorded phone call between

Smith and the confidential informant demonstrating that Smith
assented when the informant asked if he should travel interstate in
furtherance of their heroin distribution scheme.

Smith’s counsel

challenged the informant’s credibility based on his status as a
confidential informant and based on his incentives for cooperating
with the government.

Thus, Smith’s counsel performed according to

prevailing professional norms.

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Fourth, Smith argues that his counsel was ineffective in not
challenging the calculation of the range of imprisonment under the
United States Sentencing Guidelines. However, Smith’s counsel made
several objections to the presentence report, including challenges
to whether the government proved there was over one kilogram of
heroin involved, to the inclusion of a criminal history point for
a prior juvenile conviction, and to the inclusion of an enhancement
for reckless endangerment. These objections were overruled by this
Court, and the applicable guideline range was properly calculated.
Thus, Smith’s counsel did not fail to challenge the calculation
under the sentencing guidelines.
Fifth, Smith argues that under Alleyne v. United States, 133
S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466
(2000), only a jury may find facts necessary for imposing a
sentencing enhancement, and that Smith’s counsel was ineffective in
not

challenging

sentencing.

this

Court’s

findings

of

fact

regarding

his

The magistrate judge concluded that Alleyne and

Apprendi do not apply here because Smith waived his right to trial
by jury and requested a bench trial.

Because this Court held a

bench trial, this Court made all the requisite findings regarding
applicable

sentencing

enhancements.

Smith

objects

to

this

conclusion, arguing that he was unaware of Alleyne and Apprendi at
the time of his trial, that had he known of the precedent he would
not have waived his right to trial by jury, and that his waiver was

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therefore unknowing and involuntary.
apply

retroactively

to

Smith’s

However, Alleyne does not
conviction

and

sentence.

Butterworth v. United States, 775 F.3d 459, 465-66 (1st Cir. 2015);
United States v. Olvera, 775 F.3d 726, 730-31 (5th Cir. 2015);
Crayton v. United States, 799 F.3d 623, 624-25 (7th Cir. 2015);
United States v. Reyes, 755 F.3d 210, 212-13 (3d Cir. 2014); Rogers
v. United States, 561 F. App’x 440, 443-44 (6th Cir. 2014); Hughes
v. United States, 770 F.3d 814, 818-19 (9th Cir. 2014); United
States v. Richards, 567 F. App’x 591, 593 (10th Cir. 2014); Jeanty
v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86 (11th Cir. 2014).
Similarly, Apprendi does not apply here because its holding serves
as a mechanism for enforcing the Sixth Amendment right to a jury
trial, see Apprendi, 530 U.S. at 490 (concluding that the Sixth
Amendment requires that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury”), and Smith waived his right to a jury trial.
Further, Smith has failed to demonstrate that his being
unaware of how Apprendi might have affected his potential sentence
after conviction resulted in a waiver that was not knowing and
voluntary.

“The Sixth Amendment requires that the waiver [of a

jury trial] be knowing, voluntary, and intelligent.” United States
v. Boynes, 515 F.3d 284, 286-87 (4th Cir. 2008) (citing Patton v.
United States, 281 U.S. 276, 312-13 (1930)).

With the assistance

of counsel, Smith filed a motion for a bench trial, the government

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consented to Smith’s request, Smith signed a written waiver of his
right to a jury trial, and this Court, after holding a hearing on
Smith’s motion, granted his motion finding that his waiver was
knowing and voluntary. See ECF No. 246, 261, 262; Boynes, 515 F.3d
at 286-87 (concluding that where the defendant and his counsel
filed a written motion for a bench trial and the government
consents, the Court need not question the defendant about his
waiver before accepting it).

Thus, Smith’s waiver of his Sixth

Amendment right to a jury trial was knowing and voluntary, and
Smith fails to demonstrate that his counsel’s performance was
deficient or that he was prejudiced by any deficiency.
B.

Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 and Section

2255 cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases. This memorandum opinion and order
is a final order adverse to the applicant in a case in which 28
U.S.C.

§

2253(c)(1)

requires

issuance

of

a

certificate

of

appealability to take an appeal.
This

Court

finds

that

it

is

inappropriate

certificate of appealability in this matter.

to

issue

a

Specifically, this

Court finds that Smith fails to made a “substantial showing of the
denial of a constitutional right.”

See 28 U.S.C. § 2253(c)(2).

A

prisoner satisfies this standard by demonstrating that reasonable

8

jurists would find that any assessment of the constitutional claims
by

the

district

court

is

debatable

or

wrong

and

that

any

dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
This Court concludes that reasonable jurists would not find this
Court’s ruling to be debatable.

Accordingly, Smith is DENIED a

certificate of appealability by this district court.

Smith may,

however, request a circuit judge of the United States Court of
Appeals

for

the

Fourth

Circuit

to

issue

the

certificate

of

appealability.
IV.

Conclusion

For the reasons set forth above, the magistrate judge’s report
and recommendation (ECF Nos. 17/550) is AFFIRMED AND ADOPTED.
Accordingly, Jones’s motion (ECF Nos. 1/509, 5/514, 521) is DENIED,
and his objections (ECF Nos. 555, 556) are OVERRULED.
It is ORDERED that this civil action be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.

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The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.

Under Federal Rule of Civil Procedure

58, the Clerk is DIRECTED to enter judgment on this matter.
DATED:

May 2, 2016

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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