United States District Court, N.D. Indiana, South Bend Division
out of 3:17-CR-22 RLM-MGG)
OPINION AND ORDER
L. MILLER, JR., UNITED STATES DISTRICT JUDGE
found Rodoundy Smith guilty of illegal possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1). The court sentenced Mr. Smith to a term of 24
months' imprisonment and two years' supervised
release. Mr. Smith's appeal was voluntarily dismissed,
and he is now before the court requesting that the court
vacate his conviction and sentence under 28 U.S.C. §
2255. [Doc. No. 56]. For the following reasons, the court
denies Mr. Smith's motion.
used car dealer repossessed a car Mr. Smith recently
purchased, Mr. Smith drove his wife's car to the
dealership, angrily pulled a firearm from his pocket, and
placed it on the counter where the dealership personnel would
see it. He meant to intimidate them into letting him get his
repossessed car back. He didn't point the gun at anyone
or explicitly threaten anyone, and he returned the gun to his
wife's car when he realized the dealership people were
calling the police. When the police arrived, they found the
gun under the driver's seat of Mr. Smith's wife's
car. A Bureau of Alcohol, Tobacco, Firearms, and Explosives
task force officer interviewed Mr. Smith and he eventually
confessed to possessing the firearm. At trial, a Berrien
County, Michigan, probation officer testified that Mr. Smith
had a prior felony conviction and the jury convicted Mr.
Smith of being a felon in possession of a firearm.
Smith presents two arguments in his petition: that his
conviction was obtained by use of a coerced confession and
that he received ineffective assistance of counsel. The rules
governing petitions filed under 28 U.S.C. § 2255 provide
that once a motion is filed:
The motion, together with all the files, records,
transcripts, and correspondence relating to the judgment
under attack, shall be examined promptly by the judge to whom
it is assigned. If it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to relief in the
district court, the judge shall make an order for its summary
dismissal and cause the movant to be notified.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts. After reviewing the record in
this case, the court finds that Mr. Smith's motion can be
resolved without a hearing. See Bruce v. United
States, 256 F.3d 592, 597 (7th Cir. 2001); Daniels
v. United States, 54 F.3d 290, 293 (7th Cir. 1995).
Smith first argues that the court should vacate his
conviction because it was obtained by use of a coerced
confession. Mr. Smith argues that he was tricked and
manipulated into providing a false confession. Because Mr.
Smith didn't move to suppress his statements before trial
and didn't raise this issue on direct appeal or provide
cause for not doing so, the court can't reach the merits
of his argument.
Smith believed that a law enforcement officer obtained his
confession through coercion, he was required to file a motion
to suppress before trial. See Fed. R. Crim. P.
12(b)(3)(c). Because he didn't file a motion to suppress
before trial, he waived any suppression argument unless he
can show good cause. Fed. R. Crim. P. 12(c)(3); United
States v. Cardena, 842 F.3d 959, 988 (7th Cir. 2016).
And because Mr. Smith didn't pursue an appeal on this
issue, he can't raise it “on collateral review
unless [he] shows cause and prejudice, ” Massaro v.
United States, 538 U.S. 500, 504 (2003), or actual
innocence. Delatorre v. United States, 847 F.3d 837,
843 (7th Cir. 2017). Mr. Smith offered no cause for not
moving to suppress the confession before trial or pursuing an
appeal on that issue and doesn't argue actual innocence,
so he is barred from raising a claim that his conviction was
obtained by use of a coerced confession in a collateral
attack. See Massaro v. United States, 538 U.S. at
504; Delatorre v. United States, 847 F.3d at 843;
United States v. Cardena, 842 F.3d at 988.
Smith next argues that his conviction and sentence should be
vacated because his counsel provided him ineffective
assistance of counsel. In support of this claim, Mr. Smith
argues that his counsel didn't challenge a witness's
testimony that allegedly contradicted a police report and his
counsel failed to offer to stipulate to his felony
prevail on an ineffective assistance of counsel claim, Mr.
Smith must show both that his attorneys' performance
“fell below an objective standard of
reasonableness” and that there is a reasonable
probability that, but for his attorney's errors, the
result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 688-693
(1984). This is a difficult standard to meet; to prevail, Mr.
Smith must show both “that counsel made errors so
serious that ‘counsel' was not functioning as the
counsel guaranteed the defendant by the Sixth
Amendment” and “that counsel's errors were so
serious as to deprive [Mr. Smith] of a fair [result].”
Strickland v. Washington, 466 U.S. at 687.
the performance prong of the Strickland inquiry,
there is a strong presumption that counsel performed
effectively. See Berkey v. United States, 318 F.3d
768, 772 (7th Cir. 2003). “A court's scrutiny of an
attorney's performance is ‘highly deferential'
to eliminate as much as possible the distorting effects of
hindsight, and we ‘must indulge a strong presumption
that counsel's conduct falls within the wide range of
reasonable professional assistance.' ” Vinyard
v. United States, 804 F.3d at 1225 (quoting
Strickland v. Washington, 466 U.S. at 687). Because
reviewing courts shouldn't second-guess counsel's
strategic choices, the burden of ...