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Case 1:13-cv-00302-RHB Doc #11 Filed 07/11/13 Page 1 of 6 Page ID#54

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKENTO BRIAN SMITH,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________/

File No. 1:13-CV-302

HON. ROBERT HOLMES BELL

O P I N I O N

This matter is before the Court on Movant Lakento Brian Smith’s motion, pursuant

to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. (Dkt. No. 1, Mot Vacate.)

For the reasons that follow, Movant’s motion is denied.

I.

The grand jury indicted Movant on four counts: (1) conspiracy to distribute and

possess with intent to distribute five hundred grams or more of a mixture or substance

containing a detectable amount of cocaine and fifty grams or more of a mixture or substance

containing a detectable amount of cocaine base; (2) possession with intent to distribute fifty

grams or more of a mixture or substance containing a detectable amount of cocaine base; (3)

possession with intent to distribute five hundred grams or more of a mixture or substance

containing a detectable amount of cocaine; and (4) felon in possession of a firearm. (1:06-

CR-32, Dkt. No. 36, Superseding Indictment.) A jury found movant guilty of all counts.

(1:06-CR-32, Dkt. No. 64, Verdict.) Movant appealed, and his conviction was affirmed on

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December 28, 2007. The present § 2255 motion was filed with the Court on March 21, 2013.

II.

A prisoner who moves to vacate his sentence under § 2255 must show that the

sentence was imposed in violation of the Constitution or laws of the United States, that the

court was without jurisdiction to impose such sentence, that the sentence was in excess of the

maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C.

§ 2255. To prevail on a § 2255 motion “a petitioner must demonstrate the existence of an

error of constitutional magnitude which had a substantial and injurious effect or influence

on the guilty plea or the jury’s verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th

Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). A petitioner

can prevail on a § 2255 motion alleging non-constitutional error only by establishing a

“fundamental defect which inherently results in a complete miscarriage of justice, or, an error

so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d

486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.

1990) (internal quotations omitted)).

A prisoner’s motion to vacate his sentence is subject to a one-year period of limitation

that runs the latest of:

the date on which the judgment of conviction becomes final;
(1)
(2)
the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by such
governmental action;
(3)

the date on which the right asserted was initially recognized by the

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Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review; or
(4)
could have been discovered through the exercise of due diligence.

the date on which the facts supporting the claim or claims presented

28 U.S.C. § 2255(f).

III.

The government has filed a motion to dismiss Movant’s habeas petition as

untimely.(Dkt. No. 6., Mot. Dismiss.) Movant claims that Lafler v. Cooper, 132 S. Ct. 1376

(2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), create new rules of constitutional law

that give rise to his ineffective assistance of counsel claims. (Dkt. No. 1, Mot. Vacate 4.)

Specifically, Movant contends that Counsel inaccurately advised him that his exposure under

the sentencing guidelines would result in a maximum sentence of 20 years. (Id. at 8.) Movant

asserts that he would have accepted the government’s 15-19 year plea agreement if he had

been advised of his exposure to a mandatory life sentence. (Id.) Pursuant to 28 U.S.C. §

2255(f)(3), Movant contends that the one-year statue of limitations has not expired because

his claims did not ripen until the Supreme Court’s decision in Lafler and Frye on March 21,

2012. However, Lafler and Frye did not create a new, substantive legal rule and Movant’s

claims of ineffective assistance are time-barred as a result.

Appellate and district courts that have considered the question unanimously agree that

Lafler and Frye did not recognize a new right. These courts reason that Lafler and Frye

merely considered the Sixth Amendment right to counsel in a fact-specific context. In re

Perez, 682 F.3d 930, 933 (11th Cir. 2012) (per curiam) (“Lafler and Frye are not new rules

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because they are dictated by Strickland.”); Hare v. United States, 688 F.3d 878, 879 (7th Cir.

2012) (noting that the language in Lafler and Frye repeatedly spoke of “applying an

established rule to the present facts”); In re King, 697 F.3d 1189, 1189 (5th Cir. 2012) (per

curiam) (“Cooper and Frye did not announce new rules of constitutional law because they

merely applied the Sixth Amendment right to counsel to a specific factual context.”);

Buenrostro v. United States, 697 F.3d 1137, 1139 (9th Cir. 2012) (holding that Lafler and

Frye did not create a new constitutional rule); Gallagher v. United States, 711 F.3d 315, 315

(2nd Cir. 2013) (per curiam) (“Neither Lafler or Frye announced a ‘new rule of constitutional

law’ . . . .”); United States v. Ocampo, WL 317621, --- F.Supp.2d --- (E.D. Mich. 2013)

(“The right recognized by the Supreme Court in Lafler v. Cooper and Missouri v. Frye did

not announce a ‘newly recognized’ right made retroactively applicable to cases on collateral

review.”).

Consistent with other courts, this Court agrees that Lafler and Frye did not announce

a “new rule.” When a conviction is final, a “new rule” announced by the Supreme Court only

applies if it is a substantive rule. Schiro v. Summerlin, 542 U.S. 348, 351 (2004). A

substantive rule is one that “decriminalize[s] a class of conduct [or] prohibit[s] the imposition

of [certain] punishment on a particular class of persons.” Saffle v. Parks, 494 U.S. 484, 495

(1990). It is obvious from the language of Lafler and Frye that no new rule decriminalized

Movant’s conduct. Instead, the two cases merely applied the Strickland standard to the facts

of each case. Lafler, 132 S. Ct. at 1384 (“The question for this Court is how to apply

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Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer

and the defendant is convicted at the ensuing trial.”); Frye, 132 S. Ct. at 1409 (deciding the

“application of Strickland to the instances of an uncommunicated, lapsed plea”). Neither case

proffered new legal rights.

The procedural context of Lafler and Frye further establish that the Supreme Court

could not have been recognizing a new right. Both cases were decided in state courts, and a

federal court may only grant relief on collateral review of a state decision if that decision

violated “clearly established federal law.” 28 U.S.C. § 2254(d)(1). New and retroactively

applicable rules do not satisfy the “clearly established federal law” requirement. See Williams

v. Taylor, 529 U.S. 362, 380 (2000). Consequently, the relief granted to petitioners was not

the result of a new rule in either case.

Neither Lafler or Frye establish a new right. Movant’s motion is time-barred pursuant

to 28 U.S.C. § 2255(f)(3).

IV.

This Court will grant Respondent’s motion to dismiss as untimely (Mot. Dismiss)

because Movant’s motion is clearly barred by the statute of limitations.

V.

Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a

certificate of appealability to Movant. To warrant a grant of a certificate of appealability,

Movant “must demonstrate that reasonable jurists would find the district court’s assessment

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of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket

denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001).

Rather, the district court must “engage in a reasoned assessment of each claim” to determine

whether a certificate is warranted. Id. The Court does not believe that reasonable jurists

would find its assessment of Movant’s claims to be debatable or wrong because Movant’s

claims are clearly time-barred. Accordingly, a certificate of appealability will also be denied

as to each claim.

An order and judgment consistent with this opinion shall be entered.

Dated: July 11, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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