United States District Court, S.D. Ohio, Western Division, Dayton
District Judge, Walter Herbert Rice
ORDER TERMINATING COUNSEL, ALLOWING WITHDRAWAL OF
VOLUNTARY DISMISSAL WITHOUT PREJUDICE, AND AGAIN RECOMMENDING
DISMISSAL WITH PREJUDICE
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
case is before the Court on Derrick Smoote's Motion to
Withdraw the Notice of Dismissal without Prejudice filed on
his behalf by appointed counsel Lawrence J. Greger (ECF No.
Greger was appointed under the Criminal Justice Act as Mr.
Smoote's counsel on April 4, 2016, to pursue an action
under 28 U.S.C. § 2255 (ECF No. 51). Mr. Greger promptly
filed that action (ECF No. 52). Upon initial review, the
Court ordered an answer (ECF No. 53). Mr. Smoote was given
leave to amend (ECF Nos. 56, 57), but then the case was
stayed, as required by the Sixth Circuit Court of Appeals
pending a decision by the Supreme Court in Beckles v.
United States (ECF No. 62).
case was decided March 6, 2017, and this Court dissolved the
stay but recommended the § 2255 proceeding be dismissed
on the basis of the Beckles decision (ECF No. 63).
Mr. Greger obtained an extension of time to object, but
eventually filed the Notice of Dismissal instead.
Smoote avers Mr. Greger filed the Notice without his
permission and accuses Mr. Greger of unprofessional conduct
in doing so (ECF No. 68, PageID 1745). Mr. Greger has
practiced law in cases over which the undersigned has
presided for thirty-seven years and has never in any case
engaged in any unprofessional conduct. To the contrary, the
Court knows Mr. Greger to be an attorney of the highest
possible professional standards. Nevertheless, Mr. Smoote
should not continue to be represented by someone he has
accused of unprofessional conduct. Therefore Mr. Greger's
appointment in this case is terminated as of June 19, 2017,
and the docket will be amended to show that Mr. Smoote is
proceeding pro se as of that date. The Notice of Voluntary
Dismissal without Prejudice filed by Mr. Greger is DEEMED
Smoote asks the Court to appoint new counsel. Id. at
PageID 1746. Criminal defendants pursuing § 2255 relief
in federal courts are not entitled to appointed counsel under
the Criminal Justice Act. Mr. Greger was appointed here, as
were many other local attorneys, because of the veritable
flood of § 2255 litigation caused by Johnson v.
United States, 135 S.Ct. 2551 (2015). Most of the issues
raised by Johnson have now been decided and the
Court finds appointment of new counsel is not warranted here.
believes the dismissal was not warranted because he says he
was sentenced as an armed career criminal under the Armed
Career Criminal Act (“ACCA”) and not as a career
offender under the Sentencing Guidelines (ECF No. 68, PageID
1745). That is not what is shown in the Presentence
Investigation Report (“PSR”) which has a
recommendation that Smoote be found to be a career offender
and sentenced accordingly.
argues his prior convictions counted as predicates under the
Sentencing Guidelines no longer support his classification as
a career offender. The PSR shows an Indiana conviction for
battery on May 20, 1986 (PSR, ¶ 50). Battery is properly
classified as a violent felony because it involves as an
element the use of force and the sentence was one year
imprisonment. The PSR also shows an Indiana conviction for
robbery on November 22, 1987 (¶ 51). Robbery also
includes an element of force and the sentence was 11.5 years.
support of his claim that these convictions no longer support
his career offender classification, Smoote cites United
States v. Gardner, 823 F.3d 793 (4th Cir.
2016). That case determined that common law robbery in North
Carolina did not necessarily involve the use of force against
the person of another. Gardner says nothing about
robbery under Indiana law, which is the relevant State. The
Court has been unable to locate the other two cases relied on
by Smoote as the citations are incorrect or incomplete.
on the foregoing analysis, Smoote has not shown that he is
entitled to relief from his sentence as a career offender. It
is therefore again respectfully recommended that his §
2255 Motion be DISMISSED WITH PREJUDICE. Because reasonable
jurists would not disagree with this conclusion, Petitioner
should be denied a certificate of appealability and the Court
should certify to the Sixth Circuit that any appeal would be
objectively frivolous and therefore should not be permitted
to proceed in forma pauperis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after ...