P. BRADLEY MURRAY, Magistrate Judge.
This cause is before the undersigned on Petitioner Leon Speight Smoots' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 39),
On June 25, 2015, Smoots was charged by indictment with one count of possession with intent to distribute a controlled substance—that is, crack cocaine—in violation of 21 U.S.C. § 841(a)(1) (Count 1) and using, carrying, and possessing a firearm—specifically, a Taurus .38 caliber pistol, a Springfield 410 pump action shotgun, and a Winchester 30-W.C.F. rifle—in furtherance of the drug trafficking crime set forth in Count 1 of the Indictment, in violation of 18 U.S.C. § 924(c)(1)(A). (Doc. 1, at 1-2). Petitioner entered counseled guilty pleas to both charges on February 18, 2016. (See Doc. 43). During the change of plea hearing, Smoots acknowledged he had received a copy of the indictment, fully discussed the charges with his attorney, and stated he understood the charges pending against him. (Id. at 6)
ATFE TFO Lorne Watts assisted in the investigation, and took custody of the firearms seized during the execution of the warrant. He obtained an opinion from ATFE SA Ron Peterson that none of the firearms were manufactured in the state of Alabama. Both the agents identified the weapons as "firearms" within the meaning of the statute.
(Doc. 23, at 2-4 & 4 (emphasis supplied)).
Smoots was sentenced on May 18, 2016 to a total term of 120 months—five (5) years (60 months) on the drug-trafficking crime, as set forth in Count 1 of the Indictment, and a consecutive 5-year term of imprisonment (60 months) for using, carrying, or possessing a firearm in furtherance of and in relation to the drug-trafficking charge set forth in Count 1 of the Indictment. (See Doc. 34, at 1-2.) That same date, May 18, 2016, Smoots and his attorney, James D. Brandyburg, signed and filed a Notice of No Appeal (see Doc. 33). Smoots' signature appears after the following language:
(Id.) Accordingly, Smoots filed no direct appeal; instead, on April 17, 2017, he filed a motion to vacate that was not on this Court's form (see Doc. 37, at 4). After being instructed to file his action on this Court's form § 2255 petition (see Doc. 38), Petitioner complied and filed his complaint on this Court's form (see Doc. 39), wherein he raised the following claims which he asserts entitle him to collateral relief: (1) the .38 Special handgun did not belong to him (Doc. 39, at 4 ("Tiffany Smoots, the defendant[`]s daughter, purchased the handgun legally. It is registered to her, but is stored in the closet of the defendant so it is out of reach of her children.")); (2) the other two firearms in the [defendant's] closet, the Springfield 410 shotgun and the Winchester 30 W.C.F. rifle, were not loaded (id. at 5; see also id. ("Both firearms were in storage, inconspicuously, out of sight, and out of mind. The firearms were not at any point furthering, or supporting, by use, attempted use, or perceived threat, a felonious crime, or in this case, the furtherance of drug trafficking."); and (3) the failure to provide individual proof of constructive possession under the three elements raised in U.S. v. Terry (id. at 7; see also id. ("Although the defendant had knowledge of the presence of the guns, and the power to exercise dominion of the guns, he did not at any point have the intention to exercise dominion and control of the guns. In other words[,] the defendant at no point in . . . [his] time selling crack cocaine[] . . . intend[ed] on using, brandish[ing], or facilitat[ing] the use of the firearms.")).
Because all of these claims strike at the heart of the sufficiency of the evidence supporting his gun possession conviction, the government filed a motion to dismiss on May 31, 2017 (Doc. 41), and argued that this Court is procedurally barred from reaching the merits of Smoots' claims due to his failure to pursue these claims on direct appeal (see id., at 1-2).
Section 2255 reads, in relevant part, as follows: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).
Petitioner's arguments center on the sufficiency of the evidence to support his firearm possession conviction. Smoots asserts he did not knowingly possess any of the firearms recovered by sheriff's deputies from his master bedroom closet during and in relation to or in furtherance of the drug-trafficking crime set forth in Count 1 of the Indictment. (See Doc. 39). Initially, the undersigned questions whether Smoots' challenges to the sufficiency of the evidence are cognizable on a § 2255 motion to vacate. Compare Cox v. United States, 2013 WL 1909429, *3 (N.D. Ala. May 2, 2013) ("Because an evidentiary sufficiency challenge is not cognizable on a motion to vacate under § 2255, Cox's argument offers no basis for relief.") with United States v. Forrester, 456 F.2d 905, 906 (5th Cir.) ("This contention questions only the sufficiency of the evidence to sustain Forrester's conviction, and is not a contention cognizable on a collateral motion under § 2255."), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972); see Lynn v. United States, 365 F.3d 1225, 1232-34 (11th Cir.) (tackling first the question of whether petitioner's claims were cognizable in a § 2255 motion), cert. denied, 543 U.S. 891, 125 S.Ct. 167, 160 L.Ed.2d 154 (2004); Ayuso v. United States, 361 Fed.Appx. 988, 991 (11th Cir. Jan. 22, 2010) (finding petitioner's sentencing claim not cognizable under § 2255 "because it is not a constitutional error and does not rise to the level of a miscarriage of justice."). Accordingly, Smoots' motion to vacate (Doc. 39) should be
"Under the procedural default rule, `a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.'" McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (quoting Lynn, supra, 365 F.3d at 1234), cert. denied, 568 U.S. 830, 133 S.Ct. 112, 184 L.Ed.2d 52 (2012); see also Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003) ("The background for our discussion is the general rule that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice."). "This rule generally applies to all claims, including constitutional claims[,]" Lynn, supra, 365 F.3d at 1234 (citations omitted), and certainly applies to sufficiency of the evidence claims, see Aguero v. United States, 580 Fed.Appx. 748, 751-54 (11th Cir. Sept. 12, 2014) (acknowledging the procedural default doctrine applies to sufficiency of the evidence claims); Cox, supra, at *3 (applying procedural default rule to Petitioner's sufficiency of the evidence claim).
Smoots did not file a direct appeal; therefore, his sufficiency of the evidence claims, which actually boil down to an overarching assertion that he did not knowingly possess any of the firearms recovered by sheriff's deputies from his master bedroom closet during and in relation to or in furtherance of the drug-trafficking crime set forth in Count 1 of the Indictment, are procedurally barred from being raised in his § 2255 motion. However, there are two exceptions to the procedural default rule, neither of which applies in this case. "The exceptions are: (1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence." McKay, supra, 657 F.3d at 1196 (citation omitted).
Lynn, supra, 365 F.3d at 1234 (internal citations and quotation marks omitted; emphasis in original).
This Court can easily dispense of both exceptions. Smoots does not argue to this Court that the cause and prejudice exception applies and, therefore, this Court need "not address this exception." McKay, supra, 657 F.3d at 1196 ("Because McKay does not argue on appeal that the cause and prejudice exception applies—nor for that matter did he do so at the district court—we do not address this exception."). The second narrow exception does not apply because Smoots has not supplied any evidence to this Court establishing his actual, factual innocence of possessing a firearm during and in relation to or in furtherance of the drug-trafficking crime set forth in Count 1 of the Indictment. Compare Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995) (finding that, to be credible, a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.") and id. at 327, 115 S.Ct. at 867 ("To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.") with McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019 (2013) ("[T]enable actual-innocence gateway pleas are rare: `[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'") and San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.) ("The actual innocence exception is `exceedingly narrow in scope,' and the petitioner must demonstrate that he is factually innocent rather than legally innocent."), cert. denied, 565 U.S. 843, 132 S.Ct. 158, 181 L.Ed.2d 73 (2011). Instead, he simply makes a conclusory argument that he did not knowingly—that is, he had no intent to— possess any of the firearms that he acknowledges were in his bedroom closet and over which he asserts he had the power to exercise dominion (see Doc. 39). However, nothing about Petitioner's conclusory argument is grounded in newly-discovered evidence not known at the time of entry of his guilty pleas nor does this argument establish his actual, factual innocence of possessing a firearm during and in relation to or in furtherance of the drug-trafficking crime set forth in Count 1 of the Indictment, a crime he has never challenged. This is simply not one of those rare cases in which the actual innocence exception is applicable. Because neither exception is applicable, federal review of the claims he raised in his § 2255 motion (Doc. 39) is precluded.
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being denied in its entirety on procedural grounds without reaching the merits of an underlying constitutional claim, "a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). Given the applicability of the procedural default doctrine (as well as Petitioner's inability to establish one of the narrow exceptions to application of this doctrine), a reasonable jurist could not conclude that this Court is in error for summarily dismissing Smoots' motion to vacate, nor could a reasonable jurist conclude that petitioner should be allowed to proceed further with respect to his claims. Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 ("Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further."). Accordingly, petitioner is not entitled to a certificate of appealability.
Rule 11(a) further provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-00165-WS-C, Doc. 14 (order from Eleventh Circuit denying petitioner a certificate of appealability in a case in which this exact procedure was outlined in the report and recommendation); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).
The Magistrate Judge is of the opinion, based on the foregoing discussion, that Petitioner's motion to vacate, set aside or correct his sentence (Doc. 39) should be
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D.ALA. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
