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Case 8:13-cv-02400-JSM-TBM Document 6 Filed 10/17/13 Page 1 of 5 PageID 55

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

EDWIN GARCIA SMITH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________/

CASE NO. 8:13-cv-2400-T-30TBM
CRIMINAL CASE NO. 8:12-cr-97-T-30TBM

ORDER

Before the Court is Petitioner’s Amended Motion Under 28 U.S.C. § 2255 to Vacate,

Set Aside, or Correct Sentence by a Person in Federal Custody (CV Dkt. 5). Rule 4, Rules

Governing Section 2255 Cases, requires both a preliminary review of the motion to vacate

and a summary dismissal “[i]f it plainly appears from the face of the motion, any attached

exhibits, and the record of prior proceedings that the moving party is not entitled to relief .

. . .” Accord Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (The summary

dismissal of a Section 2255 motion was proper “[b]ecause in this case the record,

uncontradicted by [defendant], shows that he is not entitled to relief.”); Hart v. United States,

565 F.2d 360, 361 (5th Cir. 1978) (“Rule 4(b) of § 2255 allows the district court to

summarily dismiss the motion and notify the movant if ‘it plainly appears from the face of

the motion and any annexed exhibits and the prior proceedings in the case that the movant

Case 8:13-cv-02400-JSM-TBM Document 6 Filed 10/17/13 Page 2 of 5 PageID 56

is not entitled to relief.’”) (quoting Rule 4, Rules Governing Section 2255 Cases). After a

preliminary review, the Court concludes that the amended § 2255 motion should be denied.

BACKGROUND

Petitioner and his co-defendants were indicted in a two-count Indictment charging

violations of the Maritime Drug Law Enforcement Act (MDLEA), Title 46, U.S.C., Sections

70503(a) and 70506(a) and (b) (CR Dkt. 1). Count One charged that Petitioner and his

co-defendants conspired to possess with intent to distribute five kilograms or more of cocaine

while on board a vessel subject to the jurisdiction of the United States. Count Two charged

that Petitioner aided and abetted his co-defendants in the possession with intent to distribute

five kilograms or more of cocaine, while on board a vessel subject to the jurisdiction of the

United States.

On April 13, 2012, the United States filed a “Plea Agreement” which had been

executed by Petitioner (CR Dkt. 17). Petitioner admitted the following in the Factual Basis

section of the Plea Agreement:

On March 2, 2012, the defendant, Edwin Garcia Smith, along with two
co-defendants, was aboard a “go-fast vessel” (GFV) encountered by U.S.
Coast Guard cutter CONFIDENCE in international waters of the Caribbean
Sea. The CONFIDENCE was guided to the defendants’ GFV by a United
States aircraft, which first spotted the GFV and observed the
defendants jettisoning numerous packages into the water.

When asked by Coast Guard officers from CONFIDENCE, none of the
defendants claimed to be the master of the vessel and none made a claim of
nationality for the vessel. The GFV was, therefore, a stateless vessel subject
to the jurisdiction of the United States. The defendant was the captain of the
GFV.

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The defendant, along with his co-defendants, was later transported to

the United States, first arriving in the Middle District of Florida.

In a post-arrest interview, after being advised of his Miranda rights, the
defendant admitted that: the packages jettisoned from the GFV contained
cocaine (in excess of 5 kilograms) and marijuana; the defendant had taken part
in the smuggling venture knowing that it was for the purpose of smuggling
illegal drugs; the defendant received an up-front payment for the venture; and
the defendant had hired his co-defendants to participate in the venture.

(CR Dkt. 17, ¶ 9, p. 17).

On April 25, 2012, Petitioner entered his guilty plea pursuant to the Plea Agreement

(CR Dkts. 23, 76). Once again, at that hearing, Petitioner accepted the factual basis

underlying his guilty plea as stated in the Plea Agreement (CR Dkt. 76, pp. 24-25). On

September 27, 2012, Petitioner was sentenced to 135 months incarceration, to be followed

by 5 years supervised release (CR Dkts. 67, 69). Petitioner did not file a direct appeal.

Petitioner filed the instant § 2255 motion claiming that the Court lacked jurisdiction

to adjudicate his case because he was arrested in the territorial waters of Columbia. He also

claims that there were no illegal drugs on board the vessel.

DISCUSSION

The amended § 2255 motion relies on United States v. Bellaizac-Hurtado, 700 F.3d

1245 (11th Cir. 2012). In Bellaizac-Hurtado, the Eleventh Circuit ruled that the Maritime

Drug Law Enforcement Act, 46 U.S.C. § 70503(a), et. seq., was unconstitutional as applied

to the drug-trafficking activities of the defendants in that case, which occurred in the

territorial waters of Panama. Id. at 1258. The Eleventh Circuit held that “Congress exceeded

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its power, under the Offences Clause [of the U.S. Constitution] when it proscribed the

defendants’ [drug trafficking] conduct in the territorial waters of Panama.” Id.

The instant case is distinguishable from Bellaizac-Hurtado because Petitioner was on

board a vessel in international waters when taken into custody (CR Dkt. 17). In his amended

§ 2255 motion, Petitioner states that he was apprehended in the territorial waters of

Columbia. But, this is contrary to Petitioner’s own admissions in his plea agreement: “[o]n

March 2, 2012, the defendant, Edwin Garcia Smith, along with two co-defendants, was

aboard a “go-fast vessel” (GFV) encountered by U.S. Coast Guard cutter CONFIDENCE in

international waters of the Caribbean Sea.” (Id.). Petitioner will not now be heard to refute

his admissions to the Court.

With regard to Petitioner’s allegation in his § 2255 motion that there were no drugs

aboard his vessel, Petitioner will likewise not be heard to refute his admission to the Court

that the packages thrown overboard from the vessel contained cocaine (in excess of 5

kilograms) and marijuana (CR Dkts. 17, 76).1

Accordingly, the Court ORDERS that Petitioner’s amended motion to vacate (Dkt.

5) is DENIED. The Clerk is directed to enter judgment against Petitioner and to close this

case. The Clerk shall also terminate from pending status the amended § 2255 motion (CR

Dkt. 104) filed in the corresponding criminal case number 8:12-CR-97-T-30TBM.

1The Court notes that Petitioner does not challenge the validity of the plea or plea agreement. The Court is

permitted to make a strong presumption of truth regarding statements made by a defendant during a plea colloquy.
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Petitioner has not offered any reason to disregard his
sworn statements during the plea colloquy (CR Dkt. 76, pp. 24-25). See United States v. Rogers, 848 F.2d 166, 168
(11th Cir. 1988) (defendant has burden to show statements under oath at plea colloquy were false).

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CERTIFICATE OF APPEALABILITY AND

LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

The Court declines to issue a certificate of appealability because Petitioner has failed

to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). Nor will the Court authorize the Petitioner to proceed on appeal in forma

pauperis because such an appeal would not be taken in good faith. See 28 U.S.C. §

1915(a)(3). Petitioner shall be required to pay the full amount of the appellate filing fee

pursuant to § 1915(b)(1) and (2).

DONE and ORDERED in Tampa, Florida on October 17, 2013.

SA:sfc
Copy to: Petitioner, pro se
Counsel of Record

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