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United States v. Smith

United States District Court, E.D. Pennsylvania

March 23, 2017

GENE CORNELL SMITH Civil Action No. 16-3274


          Rufe, J.

         Before the Court is Defendant Gene Cornell Smith's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.[1] Also pending is Defendant's motion to dismiss the case for lack of jurisdiction.[2] For reasons that follow, the Court finds that the motions lack merit, and will deny them without an evidentiary hearing.[3]


         In affirming Defendant's conviction, the Third Circuit provided the following concise background of this case:

In September 2007, Smith purchased a warehouse property located in a residential community in northern Philadelphia. Smith hired his co-defendant, Clarence Cole, to renovate the property in preparation for storing cars and creating office space for a vehicle wholesale business. In October 2007, Cole contacted a trained asbestos removal professional to inquire about contracting his services to remove asbestos on the property. After receiving a quote from the contractor, Smith opted not to hire him but instead to leave it to Cole to oversee all renovations of the property. Cole in turn hired a crew of laborers who, unaware of the presence of asbestos, used sledgehammers to break apart asbestos-coated pipes, piled contaminated materials in an outdoor dumpster, and threw the dismembered pipes from a hole in the wall on the second floor onto a driveway shared between the warehouse and a neighboring church-all without proper safety equipment. As the renovation project progressed, bags of friable asbestos material were strewn about the yard; debris blanketed the property; and loose asbestos and contaminated pieces of metal were swept against the side of the building and left exposed to the elements.
Acting on a tip, the Philadelphia Health Department investigated and informed Smith that his property was out of compliance with federal work practice standards and that he would have to hire a trained professional to remove or contain the asbestos. Work practice standards are procedures published by the Environmental Protection Agency (“EPA”) that dictate the steps one must follow to comply with the Clean Air Act (“CAA”), 42 U.S.C. § 7401 et seq., when dealing with certain hazardous substances, such as asbestos. 42 U.S.C. § 7412(h). Under the CAA, it is a criminal offense for an “owner or operator of a demolition or renovation activity” in a facility like Smith's warehouse to commit a knowing violation of asbestos work practice standards. 42 U.S.C. § 7413(c)(1); 40 C.F.R. § 61.145. Despite multiple warnings from city officials, however, Smith failed to hire a trained professional to remove the asbestos material and failed to follow other asbestos-related work practice standards. See 40 C.F.R. §§ 61.145, 61.150. Instead, the renovation continued in a haphazard and dangerous manner under Cole's direction. After months of hazardous conditions and unfulfilled promises by Smith to hire a qualified contractor to bring the property up to standards, the federal government intervened by cleaning up the site using Superfund money.
Smith was indicted and convicted by a jury of his peers of five counts of violating the CAA by illegally removing asbestos, in violation of 42 U.S.C. § 7413(c)(1), and, along with Cole, one count of conspiracy to illegally remove asbestos materials, in violation of 18 U.S.C. § 371. In addition to ordering Smith to pay $451, 936.80 in restitution and $600.00 in a special assessment, the District Court imposed a six-level sentencing enhancement for the “ongoing, continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment, ” U.S.S.G. § 2Q1.2(b)(1)(A), and a two-level enhancement for Smith's role as the “organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants, id. § 3B1.1(c), for a sentence totaling forty-two months' imprisonment.[4]

         Defendant's pro se motion under 28 U.S.C. § 2255 raises four grounds for relief, all based on the alleged ineffectiveness of his trial counsel: (1) counsel failed to research and raise lack of subject matter jurisdiction; (2) counsel failed to investigate five witnesses that would have provided exculpatory evidence; (3) counsel failed to move to suppress evidence taken from Defendant's property without a warrant, to object to evidence, and to “create a reasonable probability that, but for the errors and omissions[, t]he [outcome] would have been different”; and (4) counsel failed to object during proceedings. Defendant has also moved to dismiss this case for lack of jurisdiction under the CAA and the Administrative Procedures Act.

         II. STANDARD

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner serving a sentence in federal custody may petition the court which imposed the sentence to vacate, set aside, or correct the sentence by asserting that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”[5] Relief under 28 U.S.C. § 2255 is intended to “protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.”[6] A district court must conduct an evidentiary hearing if a petitioner “has alleged facts that, if proved, would entitle him or her to relief and an evidentiary hearing is necessary to establish the truth of those allegations.”[7] “However, bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing.”[8]

         Where, as here, a petitioner's claim for relief is based on the ineffectiveness of counsel, the court must determine whether all non-frivolous claims, if true, conclusively fail to establish that counsel was ineffective.[9] The petitioner must demonstrate both that his attorney's performance was deficient and that the deficiency caused him prejudice to establish that counsel was ineffective.[10] An attorney's performance is deficient only if he “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.”[11] Such deficiency prejudices the defense only where “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[12]


         A. Motion to Dismiss for Lack of Jurisdiction

         Defendant urges the Court to vacate his conviction because jurisdiction is lacking. He argues that, pursuant to § 7607(b)(1) of the CAA, the United States Court of Appeals for the District of Columbia has exclusive jurisdiction over civil and criminal cases brought under the CAA.[13] However, § 7607(b)(1) has nothing to do with jurisdiction for criminal prosecutions. Defendant was charged in an indictment with violations of federal criminal law, and the Court has jurisdiction pursuant to 18 U.S.C. § 3231, which states: “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.”[14]

         Defendant also argues that his conviction violates the Administrative Procedure Act (“APA”), which requires that administrative remedies be exhausted prior to judicial review.[15]Defendant appears to argue that the Government failed to exhaust administrative remedies before indicting him, and therefore his conviction under the CAA violated his due process rights. The APA, however, does not apply to criminal prosecutions. The government did not have to exhaust administrative remedies before indicting Defendant, and the Court undisputedly had jurisdiction over his trial.[16] Defendant's motion to dismiss will therefore be denied.

         B. Motion Under 28 U.S.C. § 2255

         1. Failure to Raise Lack of Jurisdiction

         Defendant first argues that trial counsel was ineffective for failing to research and raise the lack of subject matter jurisdiction. This argument misses the mark for the reasons discussed in the preceding paragraphs and trial counsel cannot have been ineffective for failing to raise a meritless argument.[17]

         2. Failure to ...

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