                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
______________________________
                               )
UNITED STATES OF AMERICA,      )
                               )
          v.                   ) Criminal Action No. 90-143 (RWR)
                               )
BILLY RAY SMITH,               )
                               )
          Defendant.           )
______________________________)

                        MEMORANDUM OPINION

     Defendant Billy Ray Smith has filed pro se two motions

under 28 U.S.C. § 2255 to vacate the sentence imposed upon him

for his supervised release violation, alleging that he is

actually innocent and that the court lacked jurisdiction to

impose that sentence.   The government opposes Smith’s motions,

arguing that Smith’s claims are procedurally defaulted because

he failed to raise them on direct appeal.    Because Smith did not

file a direct appeal of his sentence and has not demonstrated

cause and actual prejudice to overcome procedural default, nor

has he provided a jurisdictional challenge with any merit or

facts to support his claim of actual innocence, his motions will

be denied.

                            BACKGROUND

     In 1990, a jury found Smith guilty of distribution of

cocaine base.   Judge Hogan sentenced Smith to 240 months of

incarceration followed by three years of supervised release.
                                  -2-

Smith filed a timely notice of appeal, and the D.C. Circuit

affirmed Smith’s conviction.     United States v. Smith, No. 92-

3055, 1996 WL 397489, at *1 (D.C. Cir. July 5, 1996).

        Smith’s term of supervised release began in January of

2013.    See 5/8/14 Report & Recommendation (“R&R”), ECF No. 144

at 1.    In July of 2013, the Probation Office filed a petition

alleging that Smith violated the condition of his supervised

release that he not commit another crime.        See 7/1/13 Prob.

Pet., ECF No. 129 at 1.     He had been arrested in June of 2013

and charged with possession with intent to distribute cocaine

and possession of marijuana.     See id. at 1.    A District of

Columbia Superior Court jury found Smith guilty of both charges.

See 4/2/14 Prob. Pet., ECF No. 143 at 1.     Smith later conceded

that he violated his supervised release as alleged.        See R&R at

2.   On October 3, 2014, Smith’s term of supervised release

imposed by Judge Hogan was revoked and Smith was sentenced to 18

months in prison to be served consecutively to his Superior

Court term of imprisonment.     See 10/10/14 J. & Commitment, ECF

No. 149 at 2.

        Smith filed two motions pro se on February 23, 2015

collaterally attacking the sentence imposed for his supervised

release violation.     See 28 U.S.C. § 2255 Mot. for Release Order,

ECF No. 151; Mot. under 28 U.S.C. § 2255 - Fed. Rules Civ. P.

15(d) to Void Judgment, Amend 2255 and Order Where Court Has New
                                -3-

Evidence and Not Replied or Returned a Filed Copy or Order to

D.A. (“Mot. to Void Judgment”), ECF No. 152.    In the first

motion,1 Smith asserts that “he is innocent” and that the

judgment imposed on October 3, 2014 is “void for want of

jurisdiction.”   Mot. for Release Order at 1.   The government

opposes Smith’s motions and argues that his motion should be

summarily denied because Smith has procedurally defaulted on his

claims.   See Govt.’s Opp’n to Def.’s 28 U.S.C. § 2255 Motion for

Release Order & Mot. to Void Judgment under 28 U.S.C. § 2255 -

Fed. R. Civ. P. 15(d) to Void Judgment, Amend 2255 and Order

Where Court Has New Evidence and Not Replied or Returned a Filed

Copy of Order to D.A. (“Govt.’s Opp’n”), ECF No. 158 at 1.




     1 Smith’s pro se filings are being construed liberally, as
they must be. See, e.g., Williams v. Gonzales, 567 F. Supp. 2d
148, 149 (D.D.C. 2008) (“The Court is not bound by a pro se
litigant’s characterization of his cause of action. Rather a
court must determine the proper characterization of a filing by
the nature of the relief sought[.]”); Abdelfattah v. U.S. Dep't
of Homeland Sec., 787 F.3d 524, 533 (D.C. Cir. 2015) (“A
document filed pro se is to be liberally construed, . . . and a
pro se complaint, however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by
lawyers.” (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007))).
But Smith’s second motion is indecipherable. Smith begins by
referring to Yaser Hamdi, the criminal case of Dzhokhar
Tsarnaev, and the Ku Klux Klan, and ends with vague references
to George H.W. Bush. See Mot. to Void Judgment at 1. Because
Smith’s second motion does not provide any facts that appear
relevant to, let alone add support for, § 2255 relief, the
second motion will be denied.
                                  -4-

                              DISCUSSION

     In a § 2255 motion, a petitioner can move the sentencing

court to “vacate, set aside or correct the sentence” if “the

sentence was imposed in violation of the Constitution or laws of

the United States, or [if] the court was without jurisdiction to

impose such sentence, or [if] the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack[.]”    28 U.S.C. § 2255(a).   A prisoner asserting a § 2255

collateral challenge, “in order to gain relief under any claim,

is obliged to show a good deal more than would be sufficient on

a direct appeal from his sentence.      Section 2255 is not a

substitute for a direct appeal.”     United States v. Pollard, 959

F.2d 1011, 1020 (D.C. Cir. 1992) (citing United States v. Frady,

456 U.S. 152, 165 (1982)).     Where a prisoner files a habeas

petition that raises a claim that is “neither jurisdictional nor

constitutional” and involves neither a “fundamental defect which

inherently results in a complete miscarriage of justice, nor an

omission inconsistent with the rudimentary demands of fair

procedure[,]” such a case “does not present ‘exceptional

circumstances where the need for the remedy afforded by the writ

of habeas corpus is apparent.’”      Hill v. United States, 368 U.S.

424, 428 (1962) (quoting Bowen v. Johnston, 306 U.S. 19, 27

(1939)).     The burden lies on the petitioner to prove the
                                -5-

violation by a preponderance of the evidence.   United States v.

Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).

     A prisoner may not raise claims collaterally attacking his

sentence for the first time in a § 2255 motion; the prisoner

must first raise his claims on direct appeal.   The Supreme Court

explained the justification for such a rule as follows:

     Once the defendant’s chance to appeal has been
     waived or exhausted, however, we are entitled to
     presume he stands fairly and finally convicted,
     especially when, as here, he already has had a
     fair opportunity to present his federal claims to
     a federal forum. Our trial and appellate
     procedures are not so unreliable that we may not
     afford their completed operation any binding
     effect beyond the next in a series of endless
     post-conviction collateral attacks. To the
     contrary, a final judgment commands respect. For
     this reason, we have long and consistently
     affirmed that a collateral challenge may not do
     service for an appeal.

United States v. Frady, 456 U.S. 152, 164-65 (1982) (citations

omitted).   Failure to raise claims on direct appeal may result

in procedural default where the prisoner fails to show cause for

the failure to raise those arguments on direct appeal, or show

actual prejudice from errors of which the prisoner complains.

See, e.g., United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.

Cir. 2003) (“Where a defendant has procedurally defaulted a

claim by failing to raise it on direct review, the claim may be

raised in habeas only if the defendant can first demonstrate

either cause and actual prejudice, or that he is actually
                               -6-

innocent.” (quoting Bousley v. United States, 523 U.S. 614, 622

(1998)) (internal quotation marks omitted)).

     To demonstrate actual prejudice, the petitioner must show

“not merely that the errors at his [underlying proceeding]

created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire

[proceeding] with error of constitutional dimensions.”

Pettigrew, 346 F.3d at 1144 (quoting Frady, 456 U.S. at 170).         A

petitioner “must at least demonstrate that ‘there is a

reasonable probability that, but for [the errors], the result of

the proceeding would have been different.’”    Id. (quoting United

States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)).       This

“‘showing of prejudice’ required to overcome procedural default

on collateral review ‘is significantly greater than that

necessary’ to establish plain error on direct review.”     Id.

(quoting Murray v. Carrier, 477 U.S. 478, 493-94 (1986)).    On

collateral review, the petitioner “‘bears the burden of

persuasion’ in showing that the ‘error . . . affected the

outcome of the district court proceedings.’”   Id. at 1144-1145

(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).       A

petitioner may demonstrate cause for failure to raise a claim on

direct appeal where a claim “is so novel that its legal basis is

not reasonably available to counsel.”   Bousley v. United States,

523 U.S. 614, 622 (1998) (quoting Reed v. Ross, 468 U.S. 1, 16
                                -7-

(1984)) (internal quotation marks omitted).   Finally, a

petitioner may demonstrate actual innocence by showing that “in

light of all the evidence, it is more likely than not” that no

reasonable fact finder would have found the charged misconduct

to have been proven.   Id. at 623 (citing Schlup v. Delo, 513

U.S. 298, 327-328 (1995)) (internal quotations marks omitted).

      “A district judge must grant a prompt hearing under § 2255

unless ‘the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.’”

Pollard, 959 F.2d at 1030 (quoting 28 U.S.C. § 2255).   However,

“[a] judge need not conduct an evidentiary hearing before

denying a petition for relief under § 2255 when ‘the motion and

the files and records of the case conclusively show that the

prisoner is entitled to no relief.’”   United States v. Morrison,

98 F.3d 619, 625 (D.C. Cir. 1996) (quoting 28 U.S.C. § 2255)

(noting that it is within the court’s discretion whether to hold

a hearing when it is the same court that presided over the

petitioner’s criminal proceedings).

     Smith’s claims will be resolved without an evidentiary

hearing.   The undersigned presided over the probation violation

and sentencing proceedings in the district court.   Familiarity

with the facts and issues at sentencing and available pleadings

provide the information necessary to resolve Smith’s motion.      As
                                  -8-

is discussed below, the pleadings and record establish

conclusively that Smith is not entitled to the relief he seeks.

     Smith did not file an appeal of his October 3, 2014

sentence, even though Smith received notice of his right to

appeal his sentence.     See 10/10/14 J. & Commitment at 3.    The

claims that Smith raises in the instant motions are raised on

collateral review for the first time.      In order to avoid

procedural default, Smith must demonstrate cause and actual

prejudice, or actual innocence.

     Smith’s two motions do not demonstrate cause or actual

prejudice.    Smith does not base his claims on any new legal

authorities that would have been unavailable to him at the time

he could have filed a timely appeal.      Indeed, the case law he

cites, albeit unrelated to the legal issues present in his

§ 2255 motion, date back to 1978.       See Mot. for Release Order at

1 (citing Michigan v. Doran, 439 U.S. 282 (1978)).       Moreover,

Smith has alleged no facts to show actual prejudice, or that the

errors he alleges placed him at an “actual and substantial

disadvantage” and that the alleged errors “affected the outcome

of the district court proceedings.”       Pettigrew, 346 F.3d at

1144-45.     From what can be deciphered from Smith’s motion, the

only errors that Smith alleges is that the district court lacked

jurisdiction and that he was deprived of notice and the right to

a fair hearing.    Mot. for Release Order at 1.
                                -9-

     Smith’s challenge to the jurisdiction of the court, in

essence, is that the federal district court lacked jurisdiction

to sentence him for violations of his supervised release

conditions and that the D.C. Superior Court retained exclusive

jurisdiction over the crimes that he committed.   Id. at 1

(“[There is a] Due Process of law violation where there is no

notice and no hearing and no such thing as a[] Federal Crime of

concurrent Jurisdiction under the Sixth Amendment.”); see also

Reply to Govt.’s Opp’n (“Reply”), ECF No. 159 at 2.

     Smith’s challenge to the court’s jurisdiction is without

merit.   Smith was convicted of a federal crime in June 1990, and

his sentence included a term of three years of supervised

release.   Federal courts retain jurisdiction over cases

involving violations of conditions of supervised release.     See

18 U.S.C. § 3583(e); United States v. Raheman-Fazal, 130 Fed.

App’x. 485, 486 (1st Cir. May 11, 2005).   The federal district

court possessed jurisdiction to sentence Smith following

violations of his supervised release terms.

     Furthermore, Smith has presented no evidence that he was

deprived of notice or the right to a fair hearing.    After the

Probation Office filed a petition informing the court of Smith’s

supervised release violations, Smith appeared before the

magistrate judge in a preliminary revocation hearing on

February 29, 2014.   Smith was later convicted by a D.C. Superior
                                  -10-

Court jury of possession with intent to distribute cocaine and

possession of marijuana.     Following Smith’s conviction, the

magistrate judge held a hearing at which Smith conceded that he

violated his supervised release term by committing the offenses

for which he was convicted in D.C. Superior Court.     R&R at 3.

The magistrate judge issued a report reflecting Smith’s

concession, and recommended that Smith’s term of supervised

release be revoked.   R&R at 3.    Smith filed no objection to the

report or recommendation.     At the final hearing on October 3,

2014, the undersigned sentenced Smith to 18 months of

incarceration, with no additional term of supervised release.

Smith did not appeal this sentence.      There is nothing in the

record to support Smith’s claim that he was deprived of his due

process rights to notice and a fair hearing.      The record shows

that Smith was afforded adequate notice and the right to a fair

hearing.   Smith’s claim to the contrary is without basis.

     Smith also provides no factual evidence to support his

claim of actual innocence.     See Mot. for Release Order at 1.      He

provides no evidence to challenge the validity of his conviction

by a Superior Court jury for the D.C. Code drug possession

charges.   He does not allege any facts that contradict the

court’s finding that he concededly violated the terms and

conditions of his supervised release.     Courts may deny wholly

conclusory claims and claims entirely unsupported by facts.
                                 -11-

See, e.g., Sanders v. United States, 373 U.S. 1, 19 (1963)

(“Petitioner’s first motion under § 2255 was denied because it

stated only bald legal conclusions with no supporting factual

allegations.     The court had the power to deny the motion on this

ground[.]”); United States v. Smith, No. 97-3121, 1998 WL

939501, at *2 (D.C. Cir. Dec. 14, 1998) (affirming denial of

§ 2255 motion by district court where petitioner alleged

“virtually no facts.”); United States v. Geraldo, 523 F. Supp.

2d 14, 22 (D.D.C. 2007) (“[C]onclusory arguments may be

summarily dismissed by the Court.”).     Smith’s claim of actual

innocence is without merit and cannot serve as a basis to

collaterally attack his sentence.

     When the district court enters a final order resolving a

petition under 28 U.S.C. § 2255 that is adverse to the

petitioner, it must either issue or deny a certificate of

appealability.    Rules Governing Section 2255 Proceedings for the

United States District Courts, Rule 11(a).    By statute, “[a]

certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.”    28 U.S.C. § 2253(c)(2).   Such a showing

demands that Smith demonstrate that “reasonable jurists could

debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’”     Slack v. McDaniel,
                               -12-

529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)).   For the reasons set forth above,

Smith has failed to make that showing in this case, and,

accordingly, no certificate of appealability shall be issued.

To the extent Smith intends to file an appeal, he must seek a

certificate of appealability from the United States Court of

Appeals for the District of Columbia Circuit in accordance with

Federal Rule of Appellate Procedure 22(b).

                            CONCLUSION

     Smith fails to demonstrate cause and actual prejudice in

order to avoid procedural default on his § 2255 claims.

Furthermore, Smith fails to provide factual support for his

claim of actual innocence, and his jurisdictional challenge

lacks merit.   Therefore, Smith’s § 2255 motions will be denied.

A separate Order accompanies this Memorandum Opinion.

     SIGNED this 5th day of October, 2015.


                                      _________/s/_____________
                                      RICHARD W. ROBERTS
                                      Chief Judge
