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United States v. Smith

United States District Court, E.D. Virginia, Newport News Division

June 30, 2017

UNITED STATES OF AMERICA, Respondent,
v.
TERRANCE SMITH, Petitioner. Crim. No. 2:02cr217-5

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson United States District Judge

         I. INTRODUCTION

         Before the Court is Terrance Smith's ("Petitioner") Motion pursuant to Title 28, United States Code, Section 2255 to Vacate Sentence by a Person in Federal Custody ("2255 Motion"). Having thoroughly reviewed the Parties' filings in this case, this Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's 2255 motion is DENIED.

         I. PROCEDURAL HISTORY

         On July 18, 2003, a jury sitting in the Eastern District of Virginia returned a guilty verdict against Petitioner on four counts. ECF No. 39. Count one charged Petitioner with Conspiracy to Distribute and Possess with Intent to Distribute Cocaine, Cocaine Base and Heroin in violation of Title 21 U.S.C. § 846. Id. Counts six and fourteen charged Petitioner with Distribution of Cocaine in violation of Title 21 U.S.C. § 841. Id. Count thirty-one charged Petitioner with Distribution of Cocaine Narcotics - Sell, Distribute, or Dispense in violation of Title 21 U.S.C. § 841. Id.

         At sentencing, in light of Petitioner's prior Arizona aggravated assault convictions, Petitioner was determined to be a "career offender" under the United States Sentencing Guidelines ("Guidelines"), §§ 4B1.1 and 4B 1.2(a). Petitioner was sentenced to 360 months imprisonment on October 15, 2003. ECF No. 48.

         On July 12, 2007, Petitioner filed his first 2255 Motion to vacate his sentence. ECF No. 174, which was subsequently dismissed on January 31, 2008. ECF No. 231. On June 18, 2012, Petitioner filed a Motion to Dismiss. ECF No. 352. Petitioner's Motion to Dismiss was construed as a 2255 Motion and was dismissed without prejudice on June 21, 2012. ECF No. 353. On July 28, 2014, Petitioner filed a successive 2255 Motion, ECF No. 385, but on August 08, 2014, the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit") denied Petitioner authorization under 28 U.S.C. § 2244 to file a successive 2255 Motion. ECF No. 390. Consequently, this Court dismissed Petitioner's 2255 Motion for lack of jurisdiction. ECF No. 392.

         On June 17, 2016, Petitioner moved the Fourth Circuit for authorization to file a successive motion under 28 U.S.C. § 2244. ECF No. 425. The Fourth Circuit granted Petitioner authorization to file a successive motion because he made a prima facie showing that the new rule of constitutional law announced in Johnson v. United States, 135 S.Ct. 2551 (2015), made retroactively applicable to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016), may apply to Petitioner's case. Id. On that same date, Petitioner filed the instant 2255 Motion. ECF No. 426. On March 28, 2015, Respondent filed their response. ECF No. 449. On May 01, 2017, Petitioner filed his reply. ECF. No. 455.

         II. LEGAL STANDARD

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

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 court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaitpt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines ...


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