govinfo:USCOURTS-ohnd-1_20-cr-00707-1

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF OHIO 
 
 
UNITED STATES OF AMERICA, 
 
 Plaintiff, 
 
v. 
 
HILARY SMITH, 
 
 Defendant. 
 
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CASE NOS. 1:20-cr-00668 
 1:20-cr-00707 
 
OPINION & ORDER 
[Resolving Case No. 1:20- cr-
00668, Doc. 22; Case No. 1:20-
cr-00707, Doc. 353] 
 
 
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE: 
 
Defendant Hilary Smith filed a § 2255 motion arguing that his trial counsel was 
ineffective for failing to ask an independent expert to test drugs in evidence.
1  His motion 
contains only a single sentence: “By failing to have an independent expert conduct a test of 
the weight and purity of the narcotics in evidence, did counsel provide ineffective 
assistance?”2 
On May 23, 2023, the Court appointed counsel to help Smith with his motion.3  But 
apparently, Smith refused to cooperate with his appointed counsel  or even to respond to 
appointed counsel’s letters.4  As a result, appointed counsel did not file any supplemental 
briefing and asked to withdraw.5  The Court granted the request to withdraw. 
On September 7, 2023, the government responded to Smith’s § 2255 motion.6 
 
1 Defendant Smith filed the same motion in two separate dockets.  No. 1:20 -cr-00668, Doc. 22; No. 1:20-cr-00707, Doc. 
353.  This Order addresses both dockets. 
2 No. 1:20-cr-00668, Doc. 22; No. 1:20-cr-00707, Doc. 353. 
3 No. 1:20-cr-00668, Appointment of Counsel (May 23, 2023); No. 1:20-cr-00707, Appointment of Counsel (May 23, 2023). 
4 No. 1:20-cr-00668, Doc. 25; No. 1:20-cr-00707, Doc. 374. 
5 No. 1:20-cr-00668, Doc. 25; No. 1:20-cr-00707, Doc. 374. 
6 No. 1:20-cr-00707, Doc. 371.  The government did not file its response in Case No. 1:20-cr-00668. 
Case: 1:20-cr-00707-JPC  Doc #: 375  Filed:  10/26/23  1 of 2.  PageID #: <pageID>
Case Nos.  1:20-cr-00668, 1:20-cr-00707 
GWIN, J. 
 
- 2 - 
To succeed on his § 2255 motion, Defendant Smith has the burden of proving that 
his trial counsel was ineffective by a preponderance of the evidence.7  Smith must prove that 
“(1) his trial counsel’s representation fell below an objective standard of reasonableness, . . . 
and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the 
result of the proceeding would have been different.”8 
Obviously, Smith has not met his burden of proof.  Smith has provided neither facts 
nor legal arguments  showing that his trial counsel ’s performance was objectively 
unreasonable.  Nor has Smith explained how the outcome of his case would have been 
different if his counsel had used an independent expert to test the drugs in evidence. 
For those reasons, the Court DENIES Smith’s motion.  The Court certifies, pursuant to 
28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, 
and no basis exists upon which to issue a certificate of appealability.9 
 IT IS SO ORDERED. 
 
Dated: October 26, 2023 s/ James S. Gwin   
JAMES S. GWIN 
UNITED STATES DISTRICT JUDGE 
 
 
7 Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006). 
8 Id. at 966 (internal quotations omitted) (quoting Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984)). 
9 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 
Case: 1:20-cr-00707-JPC  Doc #: 375  Filed:  10/26/23  2 of 2.  PageID #: <pageID>

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