Smith v. United States

         (Arising out of 3:17-CR-22 RLM-MGG)

          OPINION AND ORDER

          ROBERT L. MILLER, JR., UNITED STATES DISTRICT JUDGE

         A jury 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.

         I. Background

         After a 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.

         II. Discussion

         Mr. 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.

         Rule 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).

         Mr. 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.

         If Mr. 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.

         Mr. 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 conviction.^[1]

         To 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.

         As to 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 ...