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United States v. Smith

United States District Court, E.D. Kentucky, Central Division, Frankfort

August 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL D. SMITH. Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge

         This matter is before the Court on federal prisoner, Michael D. Smith's (“Smith”) motion, styled as a 28 U.S.C. 2241 motion and motion for change of venue. [DE 1006]. In his motion, Smith attacks and moves this Court to overturn his 2010 conviction for mail fraud. [DE 1006]. Smith argues he was innocent, that his indictment was defective, and that the Court lacked jurisdiction. [Id.]. On July 22, 2019, Magistrate Judge Hanly A. Ingram entered a Recommended Disposition, [DE 1009], recommending that Smith's motion to transfer venue be denied, and that the motion be otherwise construed as second or successive § 2255 motion and be transferred to the Sixth Circuit. On July 31, 2019, Smith filed his objections to the Magistrate Judge's Recommendation Disposition. [DE 1011]. This matter is now ripe for review.

         Having reviewed Smith's motion, [DE 1006], the Magistrate Judge's Recommended Disposition, [DE 1009], and Smith's Objection, [DE 1011], and being otherwise sufficiently advised, IT IS ORDERED that the Smith's motion, [DE 1006], is DENIED to the extent that he requests a change of venue. The portion of his motion, [DE 1006], construed as a successive § 2255 motion, will be TRANSFERRED to the Sixth Circuit in accordance with 28 U.S.C. § 2244, for a determination as to whether Smith should be allowed to pursue a second or successive motion for relief under § 2255. See 28 U.S.C. 2255(h).

         I. Procedural and Factual Background

         On July 10, 2010, Smith was convicted of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349, and eleven substantive counts of mail fraud, in violation of 18 U.S.C. § 1341. [DE 314]. On June 29, 2011, this Court sentenced Smith to a total term of 120 months of imprisonment. [DE 662].

         On April 15, 2014, the Sixth Circuit affirmed Defendant's conviction and sentence. [DE 875]; see also, United States v. Smith, 749 F.3d 465 (6th Cir. 2014). The Supreme Court subsequently denied Smith's petition for a writ of certiorari. [DE 878], see also, United States, 135 S.Ct. 307 (2014) (mem.).

         In July 2015, Smith filed his first motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody, raising four claims:(1) he received ineffective assistance of trial counsel because counsel failed to file “19-Pre-Trial Jurisdictional motions”; (2) he received ineffective assistance of counsel in the forfeiture phase of his trial; (3) the government failed to get an indictment for the seizure and forfeiture of property; and (4) the district court lacked subject matter jurisdiction over the crimes charged in the indictment. [DE 920].

         The magistrate judge recommended that the § 2255 motion be denied, [DE 962], and Smith objected. [DE 963]. However, the undersigned adopted the recommendation and denied Smith's § 2255 motion. [DE 967]. In particular, the district court concluded that: (1) Smith failed to provide any factual or legal support for his first ineffective-assistance claim and, in any event, Smith failed to show that he was prejudiced by his attorney's allegedly deficient performance; (2) Smith's forfeiture-related ineffective-assistance claim was not cognizable in § 2255 proceedings; (3) Smith procedurally defaulted his claim that the indictment was insufficient by not raising it in his direct appeal; and(4) Smith's claim that the court lacked subject matter jurisdiction over the indictment was meritless. [Id.]. The district court therefore denied Smith's motion to vacate and declined to issue a certificate of appealability. [Id. at 24, PageID #13485].

         Smith then sought a certificate of appealability. [DE 973]. However, the Sixth Circuit denied that request and a request to change venue. [DE 980].

         In December 2017, Smith applied to the Sixth Circuit for permission to file a second or successive § 2255 motion. [DE 981]. In April 2018, permission was denied. [DE 983].

         In February 2019, Smith filed a motion for leave to expand the record with newly discovered evidence. [DE 991]. The undersigned construed the motion as a motion to vacate his sentence under § 2255 and transferred it to the Sixth Circuit. [DE 992]. In May 2019, the Sixth Circuit withheld permission for Smith to file a second or successive § 2255 motion. [DE 996].

         On July 8, 2019, Smith filed the instant motion. [DE 1006]. Because the current motion, [id.], is one that seeks to overturn his conviction, the Court must construe it as a motion under § 2255. See 28 U.S.C. § 2255(a). The matter was referred to Magistrate Judge Hanly A. Ingram, who subsequently entered a Recommended Disposition, [DE 1009], recommending that Smith's motion to transfer venue be denied, [Id. at 3, PageID #13836], and that his collateral attack on his conviction and sentence is, in fact, a second or successive § 2255 motion for which he must first seek certification from the Sixth Circuit before filing. [Id. at 3-4, PageID #13836].

         On July 31, 2019, Smith filed his objections to the Magistrate Judge's Recommended Disposition. [DE 1011]. In particular, Smith objects to the Magistrate Judge's recommendation to the extent that he states that the motion is as a second or successive 2255, and as such should be transferred to the Sixth Circuit. [Id. at 1, PageID #13847]. We disagree with Smith.

         II. ...


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