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Evans v. United States

United States District Court, D. Maryland

June 12, 2015

ROGER FRANCEL EVANS, JR. Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. RDB-11-34

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Petitioner Roger Francel Evans, Jr. ("Petitioner" or "Evans") pled guilty to conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846, pursuant to a plea agreement. Re-arraignment, ECF No. 48. That plea agreement specifically provided that because of a prior felony narcotic conviction he was subject to a mandatory minimum sentence of at least ten years (120 months). Plea Agreement, ECF No. 49. Petitioner was sentenced to a total of one-hundred twenty (120) months incarceration, representing the statutorily mandated minimum sentence, in accordance with his plea agreement. See ECF No 60. Evans was initially permitted self-surrender by Judge Benson E. Legg of this Court, [1] but was ultimately arrested in Hagerstown, Maryland for attempted carjacking prior to the commencement of the sentence in this case. Petitioner filed the subject Motion to Vacate, Set Aside or Correct Sentence ("Motion to Vacate" or "Motion") pursuant to 28 U.S.C. § 2255 (ECF No. 80). Petitioner challenges his sentence on the grounds that the Government improperly enhanced his sentence pursuant to 21 U.S.C. § 851 and that he received ineffective assistance from counsel such that his Sixth Amendment rights were violated.

Petitioner also filed a Supplement to his Motion to Vacate (ECF No. 83) and a Motion for Leave to Amend the Motion to Vacate (ECF No. 86). Subsequently, the United States filed a Response to Defendant's Motion (ECF No. 90). Petitioner filed a Motion for Extension of Time to File Reply to Response (ECF No. 91) and a Reply brief (ECF No. 92). Finally, Petitioner requested a status update in correspondence with this Court (ECF No. 93).

There are therefore three motions pending before this Court. Petitioner's Motion for Leave to Amend (ECF No. 86) is GRANTED and Petitioner's Motion for Extension of Time to File Reply to Response (ECF No. 91) is GRANTED nunc pro tunc. [2] This Court will address Petitioner's amended arguments and response in conjunction with those claims set out in his original Motion. Upon review of the parties' submissions, this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Petitioner's Motion to Vacate (ECF No. 80) is DENIED.

BACKGROUND

Petitioner Roger Francel Evans, Jr. ("Petitioner" or "Evans") was charged in counts one, three and four of a four-count indictment in this case. Specifically, he was charged with one count of conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine, 28 grams or more of cocaine base ("crack cocaine"), and a quantity of marijuana in violation of 21 U.S.C. § 846 (Count I), one count of knowingly and intentionally possessing with intent to distribute 28 grams of cocaine base and a quantity of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count III), and one count of knowingly and intentionally possessing with intent to distribute 500 grams or more of cocaine and a quantity of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841 (B)(1)(B) (Count IV). Indictment 1, 4-5, ECF No. 1.

Petitioner secured private counsel (ECF No. 29) and began plea negotiations with the Government. Def.'s Mot. for Leave to Am. 8, ECF No. 86. If convicted at trial of the amount charged in the indictment (five kilograms of cocaine), Evans would have faced a minimum mandatory ten years imprisonment, and twenty years if the Government filed a § 851 enhancement for Evans' prior felony drug conviction. Resp't's Mot. Dismiss 8, ECF No. 90. Instead, the Government offered that Evans could plea to conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine, carrying a five-year sentence, in exchange for cooperation. Supp. Mot. to Vacate 9, ECF No. 83. Petitioner was unwilling to cooperate with the Government. Pet'r's Mot. to Vacate, ECF No. 80. Subsequently, the Government enhanced his potential sentence with a notice provided pursuant to 21 U.S.C. § 851. Notice, ECF No. 41. The enhancement increased the mandatory minimum incarceration period under the plea agreement from five to ten years.

On November 18, 2011, pursuant to the plea agreement, Evans pled guilty to conspiracy to distribute and possess with the intent to distribute 500 grams or more of cocaine-the same drug amount in the Government's original offer. Plea Agreement, ECF No. 49. The remaining counts were dismissed. ECF No. 60. The plea agreement stated that Petitioner understood that because of his prior felony narcotic conviction, his sentence increased from the minimum mandatory five years to a minimum mandatory ten years imprisonment. Id. On March 30, 2012, Petitioner was sentenced to a term of imprisonment of ten years, or one hundred and twenty (120) months. Sentencing, ECF No. 59. The presiding Judge, the Honorable Benson E. Legg, signed the judgment on April 2, the order was filed on April 3, and judgment was entered against Petitioner on April 4, 2012. ECF No. 60. Evans did not exercise his right to appeal within the 14-day period, which ended on April 18, 2012. Id.

On May 10, 2013, Petitioner sent a letter to this Court claiming ineffective assistance of counsel and prosecutorial misconduct. Mot. to Vacate, ECF No. 80. This Court responded by informing Evans that it would treat the letter as a Motion to Vacate under 28 U.S.C. § 2255 and ordered a supplemental filing. Order, ECF No. 81. On June 17, 2013 Petitioner filed a Supplement to his Motion to Vacate (ECF No. 83) and on July 26, 2013 a Motion for Leave to Amend (ECF No. 86).[3] The United States filed a Response to Defendant's Motion. (ECF No. 90). Subsequently, Petitioner filed a Motion for Extension of Time to File Reply to Response (ECF No. 91) and a Reply to the Government's Motion to Dismiss (ECF No. 92). Finally, Petitioner requested a status update in correspondence to this Court (ECF No. 93).

DISCUSSION

Petitioner's Motion to Vacate fails both for procedural reasons and on the merits. This Court will first address the Motion's timeliness under the statute of limitations set forth in 28 U.S.C. § 2255(f). Notwithstanding the untimeliness of the Motion, this Court will then address the merits of Petitioner's claims of prosecutorial misconduct and ineffective assistance of counsel. This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

I. Timeliness of Petitioner's Motion

A. Limitations Period

A one-year period of limitation applies to Motions to Vacate, Set Aside or Correct under 28 U.S.C. § 2255(f). In this case, the pertinent part of the statute provides that the one-year period begins to run from when the judgment of conviction became final. 28 U.S.C. § 2255(f)(1); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 54 (1989) (noting that finality in the context ...


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