United States District Court, District of Columbia
RICHARD W. ROBERTS CHIEF JUDGE.
Defendant Billy Ray Smith has filed pro se two motions under 28 U.S.C. § 2255 to vacate the sentence imposed upon him for his supervised release violation, alleging that he is actually innocent and that the court lacked jurisdiction to impose that sentence. The government opposes Smith’s motions, arguing that Smith’s claims are procedurally defaulted because he failed to raise them on direct appeal. Because Smith did not file a direct appeal of his sentence and has not demonstrated cause and actual prejudice to overcome procedural default, nor has he provided a jurisdictional challenge with any merit or facts to support his claim of actual innocence, his motions will be denied.
In 1990, a jury found Smith guilty of distribution of cocaine base. Judge Hogan sentenced Smith to 240 months of incarceration followed by three years of supervised release.
Smith filed a timely notice of appeal, and the D.C. Circuit affirmed Smith’s conviction. United StaItes v. Smith, No. 92-3055, 1996 WL 397489, at *1 (D.C. Cir. July 5, 1996).
Smith’s term of supervised release began in January of 2013. See 5/8/14 Report & Recommendation (“R&R”), ECF No. 144 at 1. In July of 2013, the Probation Office filed a petition alleging that Smith violated the condition of his supervised release that he not commit another crime. See 7/1/13 Prob. Pet., ECF No. 129 at 1. He had been arrested in June of 2013 and charged with possession with intent to distribute cocaine and possession of marijuana. See Id. at 1. A District of Columbia Superior Court jury found Smith guilty of both charges. See 4/2/14 Prob. Pet., ECF No. 143 at 1. Smith later conceded that he violated his supervised release as alleged. See R&R at 2. On October 3, 2014, Smith’s term of supervised release imposed by Judge Hogan was revoked and Smith was sentenced to 18 months in prison to be served consecutively to his Superior Court term of imprisonment. See 10/10/14 J. & Commitment, ECF No. 149 at 2.
Smith filed two motions pro se on February 23, 2015 collaterally attacking the sentence imposed for his supervised release violation. See 28 U.S.C. § 2255 Mot. for Release Order, ECF No. 151; Mot. under 28 U.S.C. § 2255 - Fed. Rules Civ. P. 15(d) to Void Judgment, Amend 2255 and Order Where Court Has New Evidence and Not Replied or Returned a Filed Copy or Order to D.A. (“Mot. to Void Judgment”), ECF No. 152. In the first motion,  Smith asserts that “he is innocent” and that the judgment imposed on October 3, 2014 is “void for want of jurisdiction.” Mot. for Release Order at 1. The government opposes Smith’s motions and argues that his motion should be summarily denied because Smith has procedurally defaulted on his claims. See Govt.’s Opp’n to Def.’s 28 U.S.C. § 2255 Motion for Release Order & Mot. to Void Judgment under 28 U.S.C. § 2255 -Fed. R. Civ. P. 15(d) to Void Judgment, Amend 2255 and Order Where Court Has New Evidence and Not Replied or Returned a Filed Copy of Order to D.A. (“Govt.’s Opp’n”), ECF No. 158 at 1.
In a § 2255 motion, a petitioner can move the sentencing court to “vacate, set aside or correct the sentence” if “the sentence was imposed in violation of the Constitution or laws of the United States, or [if] the court was without jurisdiction to impose such sentence, or [if] the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). A prisoner asserting a § 2255 collateral challenge, “in order to gain relief under any claim, is obliged to show a good deal more than would be sufficient on a direct appeal from his sentence. Section 2255 is not a substitute for a direct appeal.” United States v. Pollard, 959 F.2d 1011, 1020 (D.C. Cir. 1992) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). Where a prisoner files a habeas petition that raises a claim that is “neither jurisdictional nor constitutional” and involves neither a “fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure[, ]” such a case “does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’” Hill v. United States, 368 U.S. 424, 428 (1962) (quoting Bowen v. Johnston, 306 U.S. 19, 27 (1939)). The burden lies on the petitioner to prove the violation by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
A prisoner may not raise claims collaterally attacking his sentence for the first time in a § 2255 motion; the prisoner must first raise his claims on direct appeal. The Supreme Court explained the justification for such a rule as follows:
Once the defendant’s chance to appeal has been waived or exhausted, however, we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless post-conviction collateral attacks. To the contrary, a final judgment commands respect. For this reason, we have long and consistently affirmed that a collateral challenge may not do service for an appeal.
United States v. Frady, 456 U.S. 152, 164-65 (1982) (citations omitted). Failure to raise claims on direct appeal may result in procedural default where the prisoner fails to show cause for the failure to raise those arguments on direct appeal, or show actual prejudice from errors of which the prisoner complains. See, e.g., United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir. 2003) (“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” (quoting Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal quotation marks omitted)).
To demonstrate actual prejudice, the petitioner must show “not merely that the errors at his [underlying proceeding] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.” Pettigrew, 346 F.3d at 1144 (quoting Frady, 456 U.S. at 170). A petitioner “must at least demonstrate that ‘there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.’” Id. (quoting United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)). This “‘showing of prejudice’ required to overcome procedural default on collateral review ‘is significantly greater than that necessary’ to establish plain error on direct review.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 493-94 (1986)). On collateral review, the petitioner “‘bears the burden of persuasion’ in showing that the ‘error . . . affected the outcome of the district court proceedings.’” Id. at 1144-1145 (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). A petitioner may demonstrate cause for failure to raise a claim on direct appeal where a claim “is so novel that its legal basis is not reasonably available to counsel.” Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16(1984)) (internal quotation marks omitted). Finally, a petitioner may demonstrate actual innocence by showing that “in light of all the evidence, it is more likely than not” that no reasonable fact finder would have found the charged misconduct to have been proven. Id. at 623 (citing Schlup v. Delo, 513 U.S. 298, 327-328 (1995)) (internal quotations marks omitted).
“A district judge must grant a prompt hearing under § 2255 unless ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” Pollard, 959 F.2d at 1030 (quoting 28 U.S.C. § 2255). However, “[a] judge need not conduct an evidentiary hearing before denying a petition for relief under § 2255 when ‘the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’” United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255) (noting ...