United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
In February 2013, Rico Bias tendered guilty pleas to conspiracy to interfere with commerce by robbery ("Hobbs Act Robbery"), under 18 U.S.C. § 1951(a), and brandishing a firearm, in violation of 18 U.S.C. § 924(c) and § 2 (aiding and abetting). See ECF 63; ECF 67; ECF 68. He was sentenced on November 26, 2013, to a total term of incarceration of 185 months. See ECF 105; ECF 106. No appeal was taken.
Pursuant to 28 U.S.C. § 2255, Bias filed a Motion To Vacate, Set Aside, or Correct Sentence (the "Petiton") on January 26, 2015, alleging ineffective assistance of counsel. ECF 130; ECF 130-1. In response, the government filed a Motion to Dismiss the Petition as untimely. ECF 134. On April 2, 2015, I entered an Order granting Bias twenty-eight days to provide this Court with further information regarding his entitlement to equitable tolling of the one-year statute of limitations. ECF 136. Bias responded on April 27, 2014, under oath (ECF 139), and the government replied. ECF 142.
Thereafter, by Order of May 29, 2015 (ECF 143), I asked the government to provide the Court with a transcript of the guilty plea proceeding. In addition, I indicated that, notwithstanding the government's contention that the § 2255 Petition is untimely, "I intend to consider the merits of the claim." Accordingly, I allowed the government to submit a memorandum addressing the merits. Id. Bias filed a reply on June 25, 2015. ECF 149. On June 29, 2015, the government filed the response requested by the Court, with exhibits. ECF 150.
No hearing is necessary to resolve the Petition. See 28 U.S.C. § 2255(b).
I. FACTUAL BACKGROUND
Bias and two co-defendants were indicted on October 4, 2012. ECF 22. They were charged with various offenses relating to multiple armed robberies of convenience stores, including one on February 21, 2012, at which a customer was shot in the abdomen and seriously wounded. ECF 22. In particular, Bias was charged with conspiracy to obstruct commerce by robbery, between January 22, 2012, and June 11, 2012, in violation of 18 U.S.C. § 1951; robbery of a Wendy's Restaurant on June 11, 2012, in violation of 18 U.S.C. § 1951; conspiracy to possess firearms in furtherance of crimes of violence, i.e., robbery, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2; brandishing and discharging of a firearm in furtherance of a crime of violence, i.e., robbery, under 18 U.S.C. § 924(c) and 18 U.S.C. § 2; and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g).
On February 25, 2013, Bias entered guilty pleas to two counts: conspiracy to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One), and brandishing a firearm in furtherance of a crime of violence, and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and 2 (Count Four). See ECF 63; ECF 67; ECF 68. The lengthy Statement of Facts appended to the Plea Agreement as Attachment A (ECF 67 at 10-20) outlined twenty-two armed robberies of convenience stores committed by Bias and his co-defendants during the period from January 2012 to June 2012. The Statement of Facts further reflects that a firearm was brandished by Bias's co-defendant, Hatratico Smith, during the robberies. Moreover, Smith discharged the weapon on two occasions. Id. at 10. In one incident, on February 21, 2012, Smith shot a customer at a Royal Farms store. Id. at 13-14. At the time, Bias was in the store and he subsequently drove the getaway car. Id.
By statute, Count One carries a maximum sentence of 20 years' incarceration. Count Four carries a maximum sentence of life imprisonment and a mandatory minimum term of seven years' imprisonment, consecutive to any other sentence. Paragraph 11 of the Plea Agreement is titled "Waiver of Appeal." Bias generally waived all of his appellate rights. However, he reserved the right to appeal any sentence to the extent it exceeded the guideline range for incarceration for an offense level of 29, plus seven years.
Sentencing was held on November 26, 2013. ECF 105. Bias received a sentence of 101 months as to Count One and a consecutive term of 84 months as to Count Four, for a total, below guidelines sentence of 185 months' incarceration. ECF 106; ECF 107. Under Fed. R. App. P. 4(b)(1)(A), the time for filing an appeal expired on December 10, 2013. As noted, Bias did not file an appeal.
Bias filed his Petition on January 26, 2015. Before he did so, Bias sent correspondence to Chambers, including a letter received on March 18, 2014, docketed at ECF 118. In ECF 118, Bias requested "a blank § 2255 application, " as well as other materials, such as "full discovery, " and stated: "I intend to file ineffective assistance of counsel due to my previous attorney... had me plea out to a crime where the element... could not be proven." Id. Bias also requested a reduction in his sentence. E-mail exchanges on March 19, 2014, between Court employees Megan Price and staff attorney Kim Berger, Esquire indicate that Ms. Berger was to mail a § 2255 packet to Bias and enter a staff note to that effect. Despite the absence of a docket entry reflecting the mailing of the § 2255 packet, Bias never wrote to the Court to state that he did not receive the § 2255 form that he had requested.
Bias again wrote to the Court on May 7, 2014, which was received in Chambers on May 12, 2014. See ECF 124-1. In the letter, Bias requested a hearing on the brandishing charge under 18 U.S.C. 924(c), claiming that there was no evidence that he had physical possession of a firearm. ECF 24-1. On the same date, I sent Bias's letter to the government and ordered the government to respond. ECF 124; ECF 124-1. The government promptly responded on May 13, 2015. ECF 125.
In ECF 125, the government argued, inter alia, that this Court lacked jurisdiction to grant the relief sought as to the brandishing charge. Bias replied in a submission docketed on June 23, 2014. ECF 127. He stated, among other things: "I would like to claim ineffective assistance of counsel. [My lawyer] and I constantly argue about my role in the various incidents. I told him... that I was used by my co-defendant... If I went into any place of business it was as a patron...." Id.
On November 10, 2014, Bias filed a request with the Court Clerk to obtain a copy of his Court transcripts. ECF 128. One week later, on November 17, 2014, the Staff Attorney's Office wrote to Bias, directing him to contact the Court Reporter, and informing him that he would have to pay the transcription fee. ECF 129.
On January 26, 2015, Bias filed his § 2255 Petition. ECF 130; 132.
Additional facts are included in the Discussion.
A. Equitable Tolling
Under the provisions of 28 U.S.C. § 2255(f), the limitations period for the filing of a petition under § ...