United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE.
Michael Smith, a federal inmate, brings this action pro
se under 28 U.S.C. § 2255. He claims the evidence
is insufficient to support his conviction, the government
presented perjured testimony, he was denied the right to
confront witnesses against him, and his counsel was
constitutionally ineffective. The Government argues that the
claims should be dismissed without a hearing because they
were rejected on appeal and lack merit. I agree and therefore
deny the petition.
was the subject of a wiretap investigation that confirmed his
leadership role in a drug distribution conspiracy. He was
indicted on one count of possession with intent to distribute
cocaine and one count of conspiracy to distribute and to
possess with intent to distribute 280 grams or more of
cocaine base and five kilograms or more of cocaine. The case
was tried to a jury. The evidence showed that Smith
frequently purchased wholesale quantities of cocaine and
cocaine base (“crack”) for resale to street
sellers, some of whom were co-defendants.
moved for a judgment of acquittal at the close of the
government's case and again after the close of the
evidence on the ground that the evidence was insufficient to
support a guilty verdict. Both motions were denied.
verdict form contained a series of questions. The form
required the jury to state whether the government had proven
the two elements of the conspiracy charge beyond a reasonable
doubt. The form stated that if the government had met this
burden, the jury would have to answer questions concerning
drug type and quantity.
jury was instructed that a quantity of drugs was attributable
to Smith if during the existence of the conspiracy and in
furtherance of its unlawful objectives, he and a
co-conspirator engaged in a transaction involving that
quantity or other conspirators engaged in a transaction
involving that quantity and it was reasonably foreseeable to
Smith that they would do so.
jury convicted Smith on the conspiracy charge (as well as the
possession charge) and found that his acts in furtherance of
the conspiracy and the reasonably foreseeable acts of others
made him responsible for 280 grams or more of cocaine base
and 500 grams or more of cocaine.
filed a post-trial motion for acquittal or for a new trial
challenging the sufficiency of the evidence as to the amount
of cocaine base attributable to him under the conspiracy
count. See Motion for Acquittal, United States
v. Smith, 3:12-cr-105 (D. Conn.) (ECF No. 1152). The
motion was denied and Smith was sentenced to ten years'
imprisonment, the mandatory minimum required by the
jury's verdict. See 21 U.S.C. §
841(b)(1)(A) (ten-year mandatory minimum for 280 grams or
more of cocaine base).
appealed both his conviction and sentence. He was represented
on appeal by the same counsel who represented him at trial.
He claimed that a motion to suppress wiretap evidence should
have been granted. He also claimed that his motions for
acquittal based on the insufficiency of the evidence should
have been granted. App.'s Brief at 26-33, United
States v. Smith, No. 14-2801 (2d Cir.) (ECF No. 27).
Though his main brief limited the insufficiency claim to the
government's proof of drug quantity, id., his
reply brief included a broader argument contesting the
sufficiency of the evidence to prove that he engaged in a
conspiracy involving any quantity. See App.'s
Reply at 3-14, id. (ECF No. 51).
Court of Appeals affirmed. United States v. Smith,
629 F. App'x 57 (2d Cir. 2015). The Court expressly
rejected Smith's argument that the evidence is
insufficient to support the jury's verdict regarding drug
quantity. Id. at 58-59. At the conclusion of the
opinion, the Court stated, “[w]e have considered all of
Smith's arguments and find them to be without
merit.” Id. at 60.
claims that he asked his counsel to file a petition for
rehearing en banc and a petition for a writ of
certiorari but his counsel failed to comply with his
requests. He filed a pro se petition for a writ of
certiorari, which was denied. Smith v. United
States, 136 S.Ct. 1684 (Apr. 18, 2016).
obtain relief under § 2255, a petitioner must show that
his “sentence was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255. A claim is cognizable under § 2255 if it
involves a “fundamental defect which inherently results
in a complete miscarriage of justice.” Davis v.
Hill, 417 U.S. 333, 346 (1974) (quoting Hill v.
United States, 368 U.S. 424, 428 (1962)). Pursuant to
the “mandate rule, ” a § 2255 motion
generally does not provide an opportunity to relitigate
issues that were raised and considered on direct appeal.
Yick Man Mui v. United States, 614 F.3d 50, 53 (2d
Cir. 2010). The mandate rule also “precludes
re-litigation of issues impliedly resolved by the appellate
court's mandate.” Id. (citing United
States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)). In
addition, if a petitioner failed to raise a claim that was