United States District Court, D. Columbia
October 5, 2015.
RAY SMITH, Defendant, Pro se, GLENVILLE, WV.
BILLY RAY SMITH, Defendant: David Walker Bos, LEAD ATTORNEY,
FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.
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,
W. ROBERTS, Chief United States District Judge.
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.
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 States v. Smith, No. 92-3055, 1996 WL 397489,
at *1 (D.C. Cir. July 5, 1996).
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term of supervised release imposed by Judge Hogan was revoked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.
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. § ...