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Smith v. United States

United States District Court, N.D. Illinois, Eastern Division

March 21, 2017

CARL SMITH, Petitioner,


          AMY J. ST. EVE, District Court Judge.

         Pro se Petitioner Carl Smith has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. After the parties moved for several extensions of time to file their legal memoranda, Smith's § 2255 motion is now fully briefed. For the following reasons, the Court denies Smith's motion and declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2255. [1]. Because the Court considered Smith's July 21, 2016 “motion to vacate sentence and dismiss indictment”in the context of Smith's original § 2255 motion, the Court denies Smith's July 2016 motion as moot. [10].


         On April 5, 2012, a grand jury returned an indictment charging Smith with sex trafficking of a minor and by force in violation of 18 U.S.C. §§ 1591(a), (b)(2) (Counts 1 and 2); transporting a minor in interstate commerce with the intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a) (Count 3); and sex trafficking by force in violation of 18 U.S.C. § 1591(a) (Counts 4 and 5).

         On January 7, 2013, Smith appeared for his change of plea hearing. Prior to the hearing, the government had tendered a written plea agreement to Smith, but before the hearing began, Smith requested some last minute changes to the agreement. Moreover, although Smith declared his intention to enter into a plea of guilty to Count 3 of the indictment at the hearing, during the Rule 11 colloquy, Smith's counsel stated that there was an error in the written plea agreement. The Court then adjourned the proceedings. After resuming the change of plea hearing that same day, Smith objected to the factual basis of Count 3, as well as the stipulated conduct that formed the basis for Counts 1, 2, 4, and 5. The Court then reset the change of plea hearing to January 10, 2013, at which time defense counsel informed the Court that he had not had the opportunity to review the revised written plea agreement with Smith. Thereafter, on January 11, 2013, Smith pleaded guilty to Count 3 pursuant to a written plea agreement. Specifically, Smith pleaded guilty to transporting a minor in interstate commerce with the intent that the minor engage in prostitution in violation of 18 U.S.C. § 2423(a). Pursuant to the written plea agreement, the Court would consider the offense conduct underlying Counts 1, 2, 4, and 5 as relevant conduct for sentencing purposes. Smith's anticipated total combined offense level was calculated as 43 with a criminal history category of I - resulting in an advisory sentencing guideline range of life imprisonment.

         On March 11, 2013, Smith moved to “terminate” his appointed counsel for rendering ineffective assistance of counsel during the change of plea process. On March 19, 2013, the Court granted counsel leave to withdraw and appointed a new defense attorney. Smith's new attorney filed a motion to withdraw the guilty plea on June 11, 2013. The Court denied Smith's motion to withdraw the guilty plea on July 22, 2013. Smith then filed a pro se motion to withdraw his plea on October 21, 2013. The Court subsequently denied Smith's pro se motion on October 25, 2013.

         On August 5, 2014, the Court held Smith's sentencing hearing. In Smith's sentencing memorandum, defense counsel argued that the application of U.S.S.G. § 4B1.5(b) was impermissible double counting, or alternatively, that it overstated the seriousness of Smith's offenses. Counsel also argued that the restitution calculated by the government was inflated and unrealistic, among other sentencing arguments. At Smith's sentencing hearing, the Court calculated a guidelines sentence of life imprisonment and imposed a below-guidelines term of 360 months, plus five years of supervised release - along with conditions of supervised release.

         The Court entered final judgment on August 8, 2014, and Smith filed a timely notice of appeal on August 11, 2014. On appeal, Smith's counsel filed a motion asserting that Smith's appeal was frivolous seeking to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Seventh Circuit granted appellate counsel's motion and dismissed Smith's appeal on June 2, 2015. See United States v. Smith, 606 Fed.Appx. 307 (7th Cir. 2015) (per curiam).


         “Relief under [§ 2255] is available only in extraordinary situations, such as an error of constitutional or jurisdictional magnitude or where a fundamental defect has occurred which results in a complete miscarriage of justice.” Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013). In other words, to obtain relief under § 2255, a petitioner must show that his “sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Swanson v. United States, 692 F.3d 708, 714 (7th Cir. 2012) (citation omitted). Accordingly, a § 2255 motion is not a substitute for a direct appeal nor is it a means by which a defendant may appeal the same claims a second time. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (relief under § 2255 “will not be allowed to do service for an appeal”). If a § 2255 petitioner does not raise a claim on direct appeal, that claim is barred from the Court's collateral review unless the petitioner can demonstrate cause for the procedural default and actual prejudice from the failure to appeal, or that enforcing the procedural default would lead to a fundamental miscarriage of justice. See Brown v. Brown, 847 F.3d 502, 518 (7th Cir. 2017). Because Sixth Amendment claims of ineffective assistance of counsel often involve evidence outside of the trial record, such claims may be brought for the first time in a § 2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).


         I. Ineffective Assistance of Trial Counsel Claims

         Construing his pro se § 2255 motion and filings liberally, see Beal v. Beller, 847 F.3d 897, 902 (7th Cir. 2017), Smith argues that his trial counsel provided constitutionally ineffective assistance of counsel. To establish constitutionally ineffective assistance of trial counsel in violation of the Sixth Amendment, Smith must show that (1) his trial attorney's performance “fell below an objective standard of reasonableness, ” informed by “prevailing professional norms” and (2) “but for counsel's unprofessional errors the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To reflect the wide range of competent legal strategies and to avoid the pitfalls of review in hindsight, [the Court's] review of an attorney's performance is highly deferential and reflects a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation omitted); see also Delatorre, v. United States, 847 F.3d 837, 845 (7th Cir. 2017) (courts apply a “‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.”) (citation omitted). To establish prejudice, it is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding, ” instead Smith must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Carter v. Butts, 760 F.3d 631, 635 (7th Cir. 2014) (citation omitted).

         A. Failure to Object to ...

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