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United States v. Smith

United States District Court, D. Minnesota

July 14, 2017

United States of America, Plaintiff,
v.
Mario Ronrico Smith, Defendant.

          Amber M. Brennan, counsel of plaintiff.

          Mario Ronrico Smith, defendant pro se.

          ORDER

          David S. Doty, Judge United States District Court

         This matter is before the court upon the pro se motion[1] by defendant Mario Ronrico Smith to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motion.

         BACKGROUND

         On the evening of December 4, 2011, Crystal Lake Police performed a traffic stop on a speeding Dodge Charger.[2] The driver provided the officer with a Minnesota driver’s license identifying him as Mario Ronrico Smith. The officer noticed an odor of marijuana coming from the car and called for a back up K-9 unit to assist in a search of the vehicle. As the K-9 unit approached, Smith fled from the officers. In pursuit, the officers performed a “PIT” maneuver, stopping the vehicle. Smith fled on foot and escaped into a residential neighborhood. Although the officers were not able to apprehend Smith, they retained his driver’s license. On a search of the Charger, the officers found two kilograms of cocaine, $6,000 in U.S. currency, and a Glock .40 caliber hand gun with 12 live rounds of ammunition.

         On January 10, 2012, a grand jury indicted Smith on three counts: (1) possession with intent to distribute cocaine; (2) using and carrying a firearm during a drug trafficking crime; and (3) felon in possession of a firearm. On May 17, 2013, Smith was arrested in Chicago, Illinois. On November 19, 2013, a jury found Smith guilty on all three counts. On July 30, 2014, the court sentenced to 280 months’ imprisonment: 220 months for counts 1 and 3 to be served concurrently and 60 months for count 2 to be served consecutive to the sentence for counts 1 and 3. Smith now moves for relief pursuant to § 2255.[3]

         DISCUSSION

         I. Ineffective Assistance of Counsel

         Smith argues that he is entitled to relief because both his trial and appellate counsel were ineffective. To show that he received ineffective assistance of counsel, a movant must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, a movant must show that his counsel’s performance was so deficient that it was objectively unreasonable. See id. at 688. Because “[t]here are countless ways to provide effective assistance in any given case” and different attorneys “would not defend a particular client in the same way,” the court reviews the performance of defense counsel with significant deference. Id. at 689. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 699. Second, a movant must demonstrate prejudice by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at 694.

         A. Trial Counsel

         Smith argues that his trial counsel, Ryan Garry, was ineffective because he failed to investigate and raise an available alibi defense, namely, that he was at a family gathering on the night in question and, therefore, could not have been the driver of the Dodge Charger. The decision of whether to pursue a particular defense is a strategic choice that, when “made after a through investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Orr, 636 F.3d 944, 952 (8th Cir. 2011) (internal quotation marks omitted) (quoting Strickland, 466 U.S. at 690-91). But a counsel’s “strategic choices resulting from lack of diligence in preparation and investigation [are] not protected by the presumption in favor of counsel.” Armstrong v. Kemna, 534 F.3d 857, 864 (8th Cir. 2008) (internal quotation marks and citations omitted).

         In preparing for Smith’s defense, Garry hired a private investigator with almost thirty years of law enforcement experience. Garry Aff. ¶ 6. On being told by Smith that he was at a family gathering on the night of the offense, both Garry and the investigator interviewed several of Smith’s family members. Id. ¶ 7. After reading the investigator’s report and conducting his own interviews, Garry concluded that Smith’s family members were lying and that a jury would not find them credible. Id. Smith argues that Garry did not fully investigate his alibi defense but fails to point to any specific deficiencies in Garry’s investigation. Indeed, it appears that Garry interviewed all relevant witnesses; affidavits from family members, which were submitted by Smith, indicate they spoke with Garry. See ECF Nos. 120-23, 126-28. As a result, Smith fails to meet the first Strickland prong.[4]

         Even assuming that Garry’s performance was deficient, Smith has not shown that, but for Garry’s failure to present the alibi defense, the jury would not have convicted him. Indeed, the evidence that Smith was the driver of the Charger was strong: the driver’s license provided to the officer identified the driver as Smith; the officer testified at trial that he recognized Smith from the traffic stop; officers recovered a wallet from the vehicle with credit cards and insurance cards in Smith’s name and medication bottles prescribed to Smith; and ...


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