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Smith v. United States

United States District Court, E.D. Michigan, Northern Division

May 7, 2019

D-8, EUGENE SMITH III, Petitioner,
v.
UNITED STATES OF AMERICA,

          ORDER ADOPTING IN PART REPORT AND RECOMMENDATION, DENYING PETITIONER'S MOTION TO VACATE SENTENCE, APPOINTING COUNSEL AND SCHEDULING A HEARING

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On August 15, 2017, Petitioner Eugene Smith, III pled guilty to conspiracy to possess with intent to distribute and to distribute cocaine and heroin in violation of 21 U.S.C. §§841(a)(1) and 846 pursuant to a Rule 11 plea agreement. ECF No. 374. He was represented by Attorney Jeffrey M. Day. On March 9, 2018, the Court sentenced Smith to 135 months incarceration. ECF No. 525.

         I.

         A.

         On July 10, 2018, Smith filed a motion to vacate his sentence pursuant to 28 U.S.C. §2255 for ineffective assistance of counsel. ECF No. 552. Smith claimed that his trial counsel was ineffective because Smith “requested his Legal Counsel file [sic] an Appeal in his case subsequent to the Sentencing Hearing and the Attorney told the Movant that he could not because the Movant had taken a Rule 11(c)(1) Plea Agreement with a No. Appeal Clause in it, ” but that “Movant has since learned that it was his Attorney's responsibility to file at least a Notice of Appeal in his case when he was directed to do so by the Movant.” ECF No. 552 at 5.

         Smith's Rule 11 Plea Agreement provides

The defendant waives any right he may have to appeal his conviction on any grounds. If the defendant's sentence of imprisonment does not exceed 188 months, the defendant also waives any right he may have to appeal his sentence on any grounds. If the defendant's sentence of imprisonment is at least 100 months, the government waives any right it may have to appeal the defendant's sentence. Nothing in this waiver bars a claim of ineffective assistance of counsel on appeal or by Collateral Relief under 28 U.S.C. §2255.

         Rule 11 Plea Agreement at 9, ECF No. 374.

         On August 15, 2018, Magistrate Judge Morris held a hearing on Smith's Plea Agreement. ECF No. 369. During the hearing, Judge Morris reiterated the contents of Smith's Plea Agreement and reminded Smith that he was waiving his right to appeal.

THE COURT: The defendant waives any right he may have to appeal his conviction on any grounds. If the defendant's sentence of imprisonment does not exceed 188 months, the defendant also waives any right he may have to appeal his sentence on any grounds…
THE COURT: You are, in this plea agreement, giving up your right to appeal your conviction on any grounds. So I want you to understand that that is today's plea-taking process basically, because your -- the end result of a guilty plea is you'll have a conviction on your record. Do you understand that, sir?
THE DEFENDANT: Yes, ma'am
THE COURT: And so you're giving up your right to appeal this process basically on any grounds, so for that reason, and just because it's an important day for you, I want to make sure that you do understand everything that's going on here today and the consequences of your guilty plea…
THE COURT: In this agreement, you are giving up also your right to appeal your sentence or to withdraw from this agreement or withdraw your plea, as long as you don't get sentenced any higher than 188 months. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: So if Judge Ludington sentenced you to anything below 188 months, you won't be able to withdraw your plea or withdraw from the agreement or appeal your ...

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