United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION AND ORDER
M. Hood Senior U.S. District Judge
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.
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).
Procedural and Factual Background
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
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)
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].
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
then sought a certificate of appealability. [DE 973].
However, the Sixth Circuit denied that request and a request
to change venue. [DE 980].
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].
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].
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].
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.