UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA )

)

)

v. ) CAUSE NO.: 2:11-CR-140-JVB-PRC

) 2:15-CV-434-JVB

GARRETT DAVARRASS SMITH, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Motion to Reconsider Denial of Claims Filed Under 

28 U.S.C. § 2255 [DE 96], filed by Defendant Garrett Davarrass Smith, pro se. 

BACKGROUND

On April 6, 2012, Smith pled guilty to a charge of possession of cocaine with attempt to 

distribute. The presentence report classified Smith as a career offender under the residual clause 

of the sentencing guidelines, because he had at least two prior felony convictions of either a crime 

of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). The Court adopted the 

classification in the report and sentenced Smith as a career offender. 

On November 30, 2015, Smith filed a petition under § 2255 based on the Supreme Court’s 

decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which ruled that increasing a sentence 

under the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), 

violates the Due Process Clause. Smith argued that because the residual clause of U.S.S.G § 

4B1.1(a)(2) uses the same language as the stricken residual clause in ACCA, he no longer qualifies 

as a career offender, so his sentence violates his due process rights. Smith then filed an 

“amendment” to his petition, arguing ineffective assistance of counsel because his attorney failed 

to object to the career offender designation at the sentencing hearing.

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The Court denied Smith’s motion and declined to certify any issue for appeal. Rejecting

Smith’s due process argument, the Court cited Beckles v. United States, 137 S. Ct. 886 (2017), 

which held that the Sentencing Guidelines are not subject to a vagueness challenge, and therefore 

Johnson’s holding did not affect the identically worded clause in the Sentencing Guidelines. The 

Court also noted that, because Smith’s sentence did not exceed the statutory maximum, Smith 

could not challenge a guidelines calculation in a section 2255 petition. Finally, the Court found 

that because Smith’s claims did not arise under Johnson, the claims were untimely because they 

were not raised within the one-year limitation period. Although Smith signed a plea agreement 

waiving his right to a collateral attack on his sentence, the Court made no finding as to that waiver, 

because the motion was denied on other grounds.

Johnson now files a “motion for reconsideration,” arguing that his claims were not timebarred and that he should not have been classified as a career offender.

ANALYSIS

It is not apparent that Smith’s motion is permissible, because it could be considered a 

second collateral attack, which he has not been permitted to file. See 28 U.S.C. § 2255(h); Harris 

v. Cotton, 296 F.3d 578, 579 (7th Cir. 2002) (“Prisoners are not allowed to avoid the restrictions 

that Congress has placed on collateral attacks on their convictions or other custody-creating orenhancing punishments by styling their collateral attacks as motions for reconsideration.”). 

Nonetheless, the Court addresses the arguments in the motion.

Smith argues for the first time that his original motion was timely because the Supreme 

Court denied his petition for certiorari on December 1, 2014, and the motion was filed on 

November 30, 2015. See Smith v. United States, 135 S.Ct. 732 (2014). Because the petition was 

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filed within one year of the denial of certiorari, the original motion was timely. See 28 U.S.C. § 

2255(f)(1). 

Nonetheless, Smith waived the right to appeal his sentence in his plea agreement. 

Specifically, he agreed: 

I expressly waive my right to appeal or to contest my conviction and my sentence 

or the manner in which my conviction or my sentence was determined or imposed, 

to any Court on any ground, including any claim of ineffective assistance of counsel 

unless the claimed ineffective assistance of counsel relates directly to this waiver 

or its negotiation, including any appeal under Title 18, United States Code, Section 

3742 or any post-conviction proceeding, including but not limited to, a proceeding 

under Title 28, United States Code, Section 2255.

Plea Agreement [DE 15] at 5 (Paragraph 7(i)). In denying Smith’s direct appeal of his 

sentence, the Seventh Circuit Court of Appeals considered Smith’s waiver at length. The Seventh 

Circuit held that the waiver was valid and foreclosed any right to appeal or contest the sentence, 

other than a claim of ineffectiveness of counsel relating to the waiver itself. United States v. Smith, 

759 F.3d 702, 706-07 (7th Cir. 2014). Nothing in Smith’s § 2255 motion or his motion for 

reconsideration supports any other conclusion. Accordingly, there is no basis to reconsider the 

Court’s previous order. 

For these reasons, the Court DENIES the Motion to Reconsider Denial of Claims Filed 

Under 28 U.S.C. § 2255 [DE 96].

SO ORDERED on January 8, 2021.

s/ Joseph S. Van Bokkelen

JOSEPH S. VAN BOKKELEN, JUDGE

UNITED STATES DISTRICT COURT

cc: Garrett Davarrass Smith, pro se

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