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United States v. Smith

United States District Court, D. Columbia

October 6, 2015

UNITED STATES OF AMERICA,
v.
BILLY RAY SMITH, Defendant

         Decided October 5, 2015.

Page 5

          BILLY RAY SMITH, Defendant, Pro se, GLENVILLE, WV.

         For BILLY RAY SMITH, Defendant: David Walker Bos, LEAD ATTORNEY, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.

         For UNITED STATES OF AMERICA, Plaintiff: Angela S. George, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Criminal Division, Washington, DC; Candice Chiu Wong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Janice Traver, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Office of International Affairs, Criminal Division, Washington, DC; Stephen Joseph Gripkey, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

Page 6

         MEMORANDUM OPINION

         RICHARD W. ROBERTS, Chief United States District 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.

         BACKGROUND

         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.

Page 7

United States 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,[1] 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. § ...


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