United States District Court, E.D. Michigan, Northern Division
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION,
DENYING PETITIONER'S MOTION TO VACATE SENTENCE,
APPOINTING COUNSEL AND SCHEDULING A HEARING
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Plea Agreement at 9, ECF No. 374.
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
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
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 ...