United States District Court, D. Maryland, Northern Division
WILLIAM D. QUARLES, Jr., District Judge.
A jury found Anthony Fleming guilty of participating in a racketeering conspiracy in violation of 18 U.S.C. § 1962(d), conspiracy to distribute narcotics in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Pending are Fleming's pro se motion to vacate under 28 U.S.C. § 2255 and three motions to amend. No hearing is necessary. See Rule 8 of the Rules Governing § 2255 Proceedings. For the following reasons, Fleming's first motion to amend will be granted and the second motion to amend will be denied as moot; the other motions will be denied.
Tree Top Piru ("TTP") is a subset of the Los Angeles Bloods which developed in Maryland prisons. United States v. Mouzone, 687 F.3d 207, 212 (4th Cir. 2012). "[M]embers of the gang are expected to put in work' to advance within the gang. Putting in work' includes earning revenue for the gang and entails illegal activities such as robbery, distribution of drugs, and killing." Id. On February 21, 2008, a federal grand jury indicted Fleming and other alleged TTP members. ECF No. 1. The indictment charged Fleming with three offenses: conspiracy to participate in a racketeering enterprise (RICO conspiracy), conspiracy to distribute and possession with the intent to distribute fifty grams or more of cocaine base, and distribution of and possession with intent to distribute fifty grams or more of cocaine base. Id.
In April 2010, the Court held an eight-day jury trial for Fleming and Tavon Mouzone, another alleged TTP member. See ECF Nos. 931-51. During trial, "[t]he government introduced evidence that Fleming and Mouzone were members of TTP and participated in gang activities in the Essex area of Baltimore County, Maryland, " including "their participation in two murders." Mouzone, 687 F.3d at 212-13.
The government also presented evidence about Fleming's arrest. When "[p]olice arrested Fleming on April 24, 2007,  Baltimore Police Detective Zachary Wein observed a plastic baggie with a white rock substance protruding from a cell phone case on Fleming's hip. Seizure of the cell phone case revealed that it contained two plastic bags of [suspected] crack cocaine." Mouzone, 687 F.3d at 213. Police sent the bags and phone to forensic chemist Aisha Larkins for analysis. Id. at 214. "Larkins reported that the first package of cocaine base weighed 55.45 grams and that the second package weighed 19.08 grams...." Id. She also weighed the phone at 40.30 grams. See ECF No. 1352-1 at 2.
After Larkins completed her analysis, the government learned that she would be unavailable for trial. Mouzone, 687 F.3d at 214. To avoid a Confrontation Clause violation, the government "secured another chemist, Marta Iwashko, to perform a second analysis." Id. In Iwashko's analysis, the first bag of drugs weighed 46.26 grams, and the second package weighed 15.99 grams. Id. The phone weighed 40.50 grams. See ECF No. 1352-1 at 3. "Because Iwashko recorded the results of her analysis on the same ledger that Larkins used, the drug analysis report submitted into evidence at trial included both Iwashko's and Larkins's findings." Mouzone, 687 F.3d at 214. "When questioned at trial by the government about the discordant [drug] weight calculations, Iwashko explained that the cocaine base likely was a clumpy substance [and] slightly wet' when initially submitted for analysis, but that [t]wo and a half years later, when [she] analyzed it, ... it was a lot [drier], ' and thus, the net weight [was] lighter.'" Id.
On April 16, 2010, the jury found Fleming guilty of all charges. ECF No. 964. The verdict sheet also contained factual findings that (1) the purpose of the RICO conspiracy was to distribute crack cocaine and marijuana and to commit robberies; (2) the conspiracy to distribute cocaine included 50 grams or more of cocaine base; and (3) Fleming intended to distribute 50 grams or more of cocaine base. See id.
On July 12, 2010, the Court sentenced Fleming. Before trial, the government gave notice that it would seek an enhanced sentence under 21 U.S.C. § 851. ECF No. 907. "At sentencing, the  [C]ourt increased Fleming's offense level from 19 to 43 because it determined that "more likely than not[, ]... Mr. Fleming killed [Lamont] Jackson and that [the] murder [was] relevant and related conduct in setting the guidelines range." Mouzone, 687 F.3d at 214. The Court sentenced Fleming to 240 months imprisonment for the RICO conspiracy, life in prison for the drug conspiracy, and life in prison for the possession with intent to distribute offense. ECF No. 1065.
On July 20, 2010, Fleming filed notice of appeal. ECF No. 1075. On appeal, Fleming argued, among other claims, that submitting the drug analysis report containing both sets of findings violated the Confrontation Clause, the indictment improperly joined the drug offenses and the RICO conspiracy, and the Court erred in considering the murder as relevant conduct at sentencing. See Mouzone, 687 F.3d at 207. The Fourth Circuit found no error and affirmed Fleming's conviction and sentence. Id. at 212. Fleming filed a petition for certiorari with the Supreme Court, which was denied on January 7, 2013. Fleming v. United States, 133 S.Ct. 899 (2013).
On August 15, 2013, Fleming filed a motion to vacate under 28 U.S.C. § 2255. ECF No. 1352. On August 27, 2013, Fleming filed a motion to amend in order to add a claim under Alleyne v. United States, 133 S.Ct. 2151 (2013). ECF No. 1354. On October 17, 2013, the government responded. ECF No. 1364. On October 18, 2013, Fleming filed another motion to amend addressing his Alleyne claim. ECF No. 1366. On May 15, 2014, Fleming filed a third motion to amend. ECF No. 1397. On June 10, 2014, the government opposed the third motion to amend. ECF No. 1405.
A. Motions to Amend
"A motion by a federal prisoner for postconviction relief under 28 U.S.C. § 2255 is subject to a one-year time limitation that generally runs from the date on which the judgment of conviction becomes final.'" Clay v. United States, 537 U.S. 522, 524 (2003) (quoting 28 U.S.C. § 2255). Fleming's judgment of conviction became ...