United States District Court, District of Rhode Island
MEMORANDUM AND ORDER
Mary M. Lisi, United States District Judge.
Petitioner Shelton Smalls (“Smalls”), proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that (1) his Sixth Amendment Rights were violated because the indictment in his case failed to charge specific drug weights; (2) his trial counsel was ineffective because he failed to file a motion to suppress evidence related to firearms seized at Smalls’ residence; (3) his appellate counsel was ineffective for not raising the suppression of firearms issue; and (4) his trial counsel gave Smalls “erroneous advice in regard to [the] Armed Career Criminal Act (ACCA).” § 2255 Petition at page 9.
For the reasons stated below, Smalls’ motion is denied.
I. Background and Travel
Smalls was arrested on April 26, 2011, after two detectives of the Providence Police Department observed Smalls conducting a drug sale in a restaurant parking lot. Smalls and the other individual involved in the transaction were taken to Central Station, where Smalls was advised of his constitutional rights and completed a written Rights Form. After detectives informed Smalls that they knew where he lived, Smalls admitted that he possessed more cocaine and heroin at his apartment and he completed a “Consent to Search Form.” Smalls then accompanied the detectives to his apartment, unlocked a room in which he kept a large safe, and provided the combination number. Inside the safe, detectives found a piece of cocaine base, several bags of heroin, and a bag of cocaine. In addition, detectives found various drug paraphernalia, a number of pills, and cash. In the same room, the detectives also found a revolver, a handgun, and two types of ammunition. Following the search, Smalls provided a formal statement in which he admitted possession of the controlled substances and the firearms. The individual arrested along with Smalls after the drug transaction signed a statement in which he admitted that he had arranged to meet a drug dealer in the restaurant parking lot.
On July 13, 2011, Smalls was indicted by a grand jury for (Count I) possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (Count II) possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (Count III) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (Count IV) possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Dkt. No. 9).
On October 11, 2011, Smalls’ counsel filed a motion to suppress all evidence and statements obtained during Smalls’ April 26, 2011 arrest. (Dkt. No. 14). Following a hearing on November 8, 2011, Smalls’ motion was denied. Text Order 11/08/2011.
On November 14, 2011, the government filed (1) a “Notice of Armed Career Criminal” listing five separate convictions, each of which qualified as a serious drug offense under 18 U.S.C. § 924(e)(2)(A) (Dkt. No. 18), and (2) an “Information Charging Prior Conviction” (Dkt. No. 19), listing the same felony drug offenses.
Smalls was tried before a jury on December 7, 2011. On the next day, following closing arguments and the Court’s instructions to the jury, Smalls was found guilty on all four counts of the indictment. Minute Entry 12/08/2011. Sentencing was scheduled for March 2, 2012. Smalls subsequently sought to continue sentencing to assess whether his prior convictions qualified him as an armed career criminal. (Dkt. No. 35). Sentencing was moved a second time upon the government’s motion in order to obtain certified copies of Smalls’ convictions in the State of New York. (Dkt. No. 37).
On April 23, 2012, the government filed a motion to dismiss the information charging prior convictions on the ground that Smalls no longer qualified for sentencing as an armed career criminal. The government noted that Smalls was able to amend one of his more recent Rhode Island drug trafficking convictions to a simple possession and that one of Smalls’ older New York state convictions was entered as a possession offense in the certified records. However, the government also sought an upward departure because Smalls’ criminal history category was now substantially underrepresented. (Dkt. No. 43). On his part, Smalls sought a three-level reduction for acceptance of responsibility or, in the alternative, a downward variance in accordance with § 3553(a) factors. (Dkt. No. 42).
On May 30, 2012, Smalls was sentenced to a sentence of 72 months’ incarceration for Counts I through III, to run concurrently, and 60 months’ incarceration for Count IV, to run consecutively, as mandated by 18 U.S.C. § 924(c).
Smalls appealed his conviction and sentence on June 4, 2012. (Dkt. No. 47). On June 13, 2013, the U.S. Court of Appeals for the First Circuit affirmed both, rejecting (1) Smalls’ challenge of the suppression ruling by this Court; (2) Smalls’ claim that his conviction for Count IV was not supported by sufficient evidence; and (3) Smalls’ claim of ineffective assistance of counsel for failing to discuss the sufficiency claim as part of a Fed. R. Crim. P. Rule 29 motion. With regard to the last ground, the appellate court noted that “no matter the standard of review applied, Smalls cannot demonstrate any prejudice flowing from counsel’s failure to pursue the matter.” (Dkt. No. 64).
Smalls filed a timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 66). The government responded with an objection to Smalls’ motion (Dkt. No. ...