United States District Court, Western District of Kentucky, Paducah Division
MEMORDANDUM OPINION AND ORDER
Thomas B. Russell, Senior Judge United States District Court
This matter comes before the Court on Defendant/Petitioner Billi Jo Smallwood’s § 2255 habeas petition. (Docket #264, 265). The United States has filed a response. (Docket #280). Smallwood has filed a reply. (Docket #283). This Court referred the matter to Magistrate Judge King for a report and recommendation. (Docket #268). A report and recommendation has been issued. (Docket #284). Smallwood filed an objection. (Docket #285). The matter is now ripe for decision. For the foregoing reasons, the Court DENIES Smallwood’s habeas petition.
Smallwood was convicted of 18 U.S.C. § 844(i), which criminalizes the destruction of a building by fire. The statutory penalty is increased if a death results from the fire. Two of Smallwood’s minor children died in the fire. Smallwood was sentenced to a 300-month term of imprisonment, which represented a downward departure from the advisory sentencing guideline range. Smallwood did not appeal her conviction on advice of her counsel, who warned her that the government would likely also appeal and she would receive a longer sentence.
Smallwood has now filed a § 2255 habeas petition. Smallwood lists twelve grounds for relief. Magistrate Judge King recommended that Smallwood’s petition be denied. Smallwood has filed an objection. After a de novo review, this Court adopts Magistrate Judge King’s report and recommendation and denies Smallwood’s petition for the following reasons.
A prisoner may request that her sentence be set aside on the grounds that it was “imposed in violation of the Constitution or laws of the United States.” 28 USCS § 2255(a). “The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction, ” but only “when the error qualifies as a ‘fundamental defect which inherently results in a complete miscarriage of justice.’” Slater v. United States, 38 F.Supp.2d 587, 589 (M.D. Tenn. 1999) (quoting Reed v. Farley, 512 U.S. 339 (1994).
Smallwood lists twelve reasons for her § 2255 habeas petition. The Court will address them in the same order as Smallwood presents them in her petition.
I. Grand Jury Errors and False Statements and Omissions before the Grand Jury.
Smallwood first two bases for her petition are that there were errors in grand jury indictment process. Specifically, Smallwood alleges that the prosecutor and witnesses that testified before the grand jury made false statements which led to her indictment. (Docket #263).
There are two reasons why these arguments fail. First, a claim that false testimony was presented to the grand jury is rendered harmless if the defendant is subsequently convicted by a petit jury. United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir. 1996) (“any error by the prosecution before the grand jury is harmless because [the defendant] was subsequently convicted by the petit jury”); see also United States v. Mechanik, 475 U.S. 66, 71‐73 (1986); United States v. Thompson, 2009 U.S. Dist. LEXIS 9667 *15-16 (E.D. Ky. 2009). Second, Smallwood’s arguments are procedurally defaulted because Smallwood should have, before trial, raised issues relating to the grand jury indictment. United States v. Combs, 369 F.3d 925, 936 (6th Cir. 2004) (“Combs insists the police officer testified falsely to the grand jury. But Combs forfeited this issue by not raising it before trial”).
II. Decision not to call experts.
Smallwood’s third complaint is that her counsel was ineffective for failing to ...