United States District Court, D. Maryland
K. Bredar Chief Judge.
August 10, 2017, Garnett Gilbert Smith, who is confined at
the Federal Correctional Institution at McDowell in Welch,
West Virginia, filed a “motion to show cause as to why
petitioner's escape should be removed from the
record.” United States v. Smith, Criminal No.
JKB-12-0479 (D. Md.) at ECF No. 213. The motion was treated
as a 28 U.S.C. § 2255 motion to vacate and the
government was ordered to respond. Id. at ECF No.
214. The government duly filed its response. ECF No. 216.
Also filed by Smith is his Pro Se Request for
Explanation/Court Intervention for an Unexplained Collateral
Consequence of Guilty Plea, ECF No. 208, to which the
government has responded, ECF No. 215.
the motion relating to the escape designation, the government
has responded presenting a two-fold argument for dismissal.
First, the government asserts that Smith's filing should
not be construed as a § 2255 motion as he does not seek
to set aside or correct his conviction or sentence, but
rather seeks a correction or explanation as to the reference
of his “escape offense” included in his
pre-sentence report (“PSI”). The government
argues that as the PSI does not include an erroneous escape
conviction in Smith's criminal history, the PSI need not
be corrected. Id. at ECF No. 216. Second, the
government argues that should the court construe Smith's
motion as a motion to vacate it should be barred as a second
or successive § 2255 motion because he has not received
authorization to file the motion to vacate. Id. at
was convicted of one count of conspiracy to distribute and
possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846. On January 30, 2014, Smith was sentenced
to a 300-month term of confinement in the U.S. Bureau of
Prisons (“BOP”) and a supervised-release term of
five years. Smith was also ordered to pay a special
assessment of $100.00. Judgment was entered on January 31,
2014. Id. at ECF No. 105. On September 25, 2014, the
United States Court of Appeals for the Fourth Circuit
affirmed the criminal judgment. See United States v.
Smith, 583 Fed.Appx. 230 (4th Cir. 2014).
September 24, 2015, a self-represented motion to vacate was
filed by Smith, raising ineffective assistance of counsel
grounds. United States v. Smith, Criminal No.
JKB-12-0479 (D. Md.) at ECF No. 158. After briefing, the
court reviewed all issues, denied the motion to vacate, and
denied a certificate of appealability on January 8, 2015.
Id. at ECF No. 175. On June 1, 2016, the Fourth
Circuit denied a certificate of appealability and dismissed
the appeal. See United States v. Smith, 651
Fed.Appx. 184 (4th Cir. 2016).
is well-settled that the district court lacks jurisdiction to
consider a second or successive motion filed under 28 U.S.C.
§ 2255 unless the motion has been certified in advance
by a panel of the appropriate circuit court of appeals and
found to contain newly discovered evidence bearing on the
innocence of the movant, or “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h); see
also United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003). In this case, Smith filed a prior §
2255 motion, which related to the same judgment and sentence
that he presently challenges.
extent that Smith's filing may be construed as a §
2255 motion, the court finds that Smith neither states, nor
does the record show, that he has obtained prior
authorization from the Fourth Circuit to bring this 28 U.S.C.
§ 2255 action. Thus, being without authorization, this
court is unable to hear Smith's claim.
Winestock, 340 F.3d at 205. The motion must be
dismissed for lack of jurisdiction. See Evans v.
Smith, 220 F.3d 306, 325 (4th Cir. 2000).
the court finds that Smith's motion merits no general
relief by way of court order. Smith claims that while
confined at a prior BOP facility in 2014, he was informed
that an escape status was placed on him “for
classification purposes.” He states that he was later
told that the matter derived from the United States District
Court. United States v. Smith, Criminal No.
JKB-12-0479 (D. Md.) at ECF No. 213 at 2.
government maintains that Smith's PSI does not contain a
reference to an “erroneous escape conviction, ”
but does reflect convictions entered by the District Court of
Maryland for Baltimore City in 1988 on two counts of failure
to appear (“FTA”) and for which Smith was
sentenced to 30 days of incarceration. The government argues
that under BOP regulations, the BOP security classification
system requires that an “inmate's entire background
of criminal conviction (excluding the current offense) and
institutional disciplinary findings [are to be] used to
assess points related to his/her history of violence and/or
history of escape.” See BOP Program Statement
P5100.08. The failure to appear or flight to avoid
prosecution for any offense is to be counted under the escape
history item, when there is a documented finding of guilt.
Id. In light of Smith's state criminal
convictions on the FTA counts, the court finds the BOP use of
the convictions when classifying Smith to a security grouping
does not violate policy or law.
regard to Smith's Pro Se Request for
Explanation/Court Intervention for an Unexplained Collateral
Consequence of Guilty Plea, to the extent it constitutes a
motion, it will be denied for the reasons stated by the
government in its response.
addition to the above analysis, a certificate of
appealability (“COA”) must be considered. Unless
a COA is issued, a petitioner may not appeal the district
court's decision in a § 2255 proceeding. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b). When a district
court dismisses a motion to vacate solely on procedural
grounds, a certificate of appealability will not issue unless
the petitioner can demonstrate both “(1) 'that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right' and (2) 'that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.'” Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000));
see also Buck v. Davis, ___ U.S. ___, 137 S.Ct. 759,
773-74 (2017). Petitioner has failed to make the requisite
showing and the court declines to issue a certificate of
appealability. The motion to vacate will be ...