United States District Court, D. Minnesota
M. Brennan, counsel of plaintiff.
Ronrico Smith, defendant pro se.
S. Doty, Judge United States District Court
matter is before the court upon the pro se
motion 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.
evening of December 4, 2011, Crystal Lake Police performed a
traffic stop on a speeding Dodge Charger. 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.
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.
Ineffective Assistance of Counsel
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.
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).
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
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 ...