Marlon Alonzo Smith was convicted in 2018 of possessing a controlled substance with intent to distribute and sentenced to 180 months in prison. After an unsuccessful direct appeal and an unsuccessful first § 2255 motion, Smith filed a pro se motion in the district court asking to amend his presentence investigation report (PSR) to reflect that certain prior convictions had been expunged. The district court construed this motion as a second or successive § 2255 petition. Because Smith had not obtained authorization from the Tenth Circuit to file such a motion, the district court dismissed it for lack of jurisdiction. Smith then appealed, but the Tenth Circuit noted that appealing a dismissal on these grounds requires a certificate of appealability (COA).
The court analyzed whether Smith's motion fell under the exception established in In re Weathersby, which allows a prisoner to file a new § 2255 motion without prior authorization if the factual basis for the claim did not exist at the time of the first motion. The court distinguished Smith's case from Weathersby by applying United States v. Williams. In Williams, the court held that the Weathersby exception applies only when the factual basis for the claim did not yet exist, not merely when the prisoner had not yet discovered it. The record showed that the expungements Smith relied upon occurred on February 26, 2021, which was before his first § 2255 proceeding concluded in August 2021. Therefore, the factual basis existed during the original proceedings, making the motion second or successive. Since the district court correctly dismissed the motion for lack of jurisdiction, Smith could not make the 'substantial showing of the denial of a constitutional right' required to obtain a COA. The court also noted that Smith waived any alternative interpretation of Weathersby by failing to raise it in his initial supplemental brief.
The appeal is dismissed, leaving the district court's order dismissing Smith's motion in place. This decision reinforces the strict timeline for when a factual basis for a claim must exist to avoid being classified as second or successive. It clarifies that a prisoner's lack of knowledge about an expungement does not extend the window for filing a new § 2255 motion if the expungement occurred before the first motion concluded. Smith remains subject to his original sentence unless he can find another procedural avenue not barred by the second or successive limitation.
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