Smith v. United States

2009 DNH 105

• Court: District Court, D. New Hampshire
• Decided: July 14, 2009
• Docket: 09-CV-232-SM
• Status: Published

Opinion

Smith v. United States 09-CV-232-SM 07/14/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Carl Smith

v. Civil No. 09-CV-232-SM Opinion No. 2009 DNH 105 United States of America

O R D E R

Petitioner, Carl Smith, seeks relief from his conviction and

sentence under the provisions of 28 U.S.C. § 2255.

Smith was convicted, after a jury trial, of one count of

distributing cocaine and two counts of distributing cocaine base

or "crack" cocaine, in violation of 21 U.S.C. § 8 4 1 ( a ) (1). He

was sentenced to 210 months in prison, the bottom end of the

advisory guideline range. Smith was properly classified as

falling within Criminal History Category VI — both based upon the

number of criminal history points ascribed, and based upon his

career offender status. The conviction and sentence were

affirmed on appeal.

Petitioner seeks habeas relief on grounds that defense

counsel "failed to object to Defendant Smith's Statutory Max

. . . which substantially increased Defendant Smith's sentence in violation of A p p r e n d i ," and was "Ineffective for not exploring

plea bargain options." Neither ground has merit.

Petitioner's sentencing range was properly calculated, and,

he was sentenced at the low end of the advisory guideline range.

There was no Apprendi issue. Petitioner's suggestion that

defense counsel provided constitutionally defective

representation by failing to explore plea bargain options is

unsupported, vague, conclusory and palpably incredible. See

Machibroda v. United S t ates. 368 U.S. 487; David v. United

States, 134 F.3d 470 (1st Cir. 1998). Indeed, as petitioner's

own allocution at sentencing made clear — he chose to go to

trial, rather than consider a plea agreement, under virtually

hopeless circumstances, which caused the court to seriously

consider whether such incredibly bad judgment, so contrary to his

own interests, might support a lesser sentence. See Transcript

of Sentencing, 05-cr-259-01-SM, April 24, 2007, pp. 10-17 (court

questioning prosecutor about potential variant sentence), and 38

(Petitioner: "If anything, out of any of my cases in my life

that I thought that I was guilty of I took a plea or whatever

because there was no chance of fighting it as far as I could

understand or remember or see. XU. this c a s e . you [kl n o w . 1_ still

d o n 't see i t ." (emphasis a d d e d ) .)

2 Nothing in the petition or the record remotely supports a

claim that counsel provided ineffective representation.

The petition, and the files and records of the case

conclusively show that petitioner is not entitled to relief. The

sentence imposed was authorized by law and no credible claim of

denial or infringement of petitioner's constitutional rights has

been m a d e .

Conclusion

The petition is denied. The clerk shall close the case.

SO ORDERED.

Steven J./McAuliffe Chief Judge

July 14, 2009

cc: Carl Smith, pro se Aixa Maldonado-Quinones, Esq., AUSA