United States District Court, D. Maryland
Ellen L. Hollander United States District Judge
Robert Stewart has filed a motion pursuant to 28 U.S.C. § 2255, seeking to vacate, set aside, or correct sentence. ECF 44. In support of the § 2255 submission, Stewart has filed a lengthy memorandum. ECF 44-1 (collectively, the “Petition” or “Motion to Vacate”). The government opposes the Petition. ECF 50. For the reasons discussed below, no evidentiary hearing is needed to resolve the Petition, and I shall deny the Petition.
I. Factual and Procedural Background
A federal grand jury indicted Stewart on May 23, 2013, on a charge of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). ECF 1. On November 5, 2013, Mr. Stewart entered a plea of guilty pursuant to a written plea agreement. ECF 20; ECF 21 (Plea Agreement). Sentencing was held on March 13, 2014. See ECF 26. Because Mr. Stewart had three prior qualifying convictions for serious drug offenses, Stewart was deemed an Armed Career Criminal, and the Court therefore imposed the mandatory minimum term of fifteen years’ imprisonment, pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). See ECF 27 (Judgment).
On March 14, 2014, Mr. Stewart noted an appeal to the United States Court of Appeals for the Fourth Circuit. ECF 29. He claimed that the “district court erred in imposing a statutory mandatory minimum sentence because such sentences conflict with the mandate of 18 U.S.C. § 3553(a) (2012) to impose a sentence that is ‘sufficient but not greater than necessary.’” ECF 42 at 3. In addition, Stewart argued that the district court erroneously “increased his statutory maximum sentence based on facts that were not charged in the indictment or submitted to a jury, in violation of the Fifth and Sixth Amendments.” Id. The Fourth Circuit rejected Mr. Stewart’s claims and affirmed his conviction on October 24, 2014. See United States v. Stewart, 585 Fed. App’x 106 (4th Cir. Oct. 24, 2014) (per curiam); see also ECF 42 (Opinion and Judgment of the Fourth Circuit); ECF 43 (Mandate).
Stewart’s petition for a writ of certiorari to the United States Supreme Court was denied on February 23, 2015. Stewart v. United States, __ U.S. __, 135 S.Ct. 1476 (2015). His Motion to Vacate followed on September 10, 2015. ECF 44.
Stewart advances two primary grounds for relief. First, he asserts a denial of due process on the ground that two prior Maryland drug offenses were improperly considered as an “ACCA predicate.” ECF 44 at 4; ECF 44-1 at 5. Specifically, Stewart complains that the Court relied on prior convictions that do “not qualify as a ‘serious drug offense, ’ because movant received a punishment of less than one year of imprisonment.” ECF 44 at 4. Second, Stewart alleges ineffective assistance of defense counsel, “for not challenging the ACCA enhancement sufficiently, nor did counsel anticipate adequately the change in law . . . .” Id.
In his supporting Memorandum (ECF 44-1), Stewart asserts: “Congress . . . sought to apply the fifteen year mandatory minimum penalty only to ‘serious’ career recidivists, like drug kingpins and cartel members, not to persons like the petitioner who was convicted of his first drug charge at 18 years of age and received what amounts to a sentence that can’t be serious . . . .” ECF 44-1 at 4. He insists that “his previous drug convictions do not qualify as serious or violent by any definition of the ACCA’s predicate.” Id. at 5.
Stewart relies, inter alia, on the Fourth Circuit’s decisions in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), as well as the Supreme Court’s ruling in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), to support his claim that he is not an armed career criminal, because his prior drug offenses do not constitute qualifying drug offenses within the meaning of ACCA. He maintains that the government is barred “from using prior drug offenses as predicates for enhancement where the defendant received a sentence of less than one year imprisonment based on the sentencing scheme for that offense.” ECF 44-1 at 7. In other words, Stewart contends that, regardless of the maximum potential statutory sentence for his Maryland drug offenses, the federal sentencing court must consider only the sentence that was actually imposed, and not the maximum potential sentence that could have been imposed under the statutory scheme. Id.
Further, according to petitioner, 18 U.S.C. § 924(e) “is a prime example of a sentencing statute that seems to render Section 3553(a) superfluous.” ECF 44-1 at 11. He reasons that it conflicts with United States v. Booker, 543 U.S. 220 (2005), and its progeny, because it “requires courts to impose no less than a 15 year sentence, ” id., “without any consideration of whether that sentence is ‘sufficient but not greater than necessary’ under Section 3553(a).” Id. Thus, the court cannot effectuate its obligation to make an “individually tailored” sentence. Id.
Petitioner also complains that he received ineffective assistance of trial counsel. ECF 44-1 at 17. According to Stewart, his lawyer “refused to listen to the petitioner when he told him that he never carries a firearm for protection.” Id. And, he complains that defense counsel “refused to investigate the petitioner’s claim that his life was in danger . . . .” Id. In addition, petitioner claims he “tried to tell the defense counsel about . . . [the] non-seriousness of the prior offenses, but defense counsel refused to hear anything that petitioner had to say and negotiated a plea agreement from a position of weakness . . . .” ECF 44-1 at 17-18. Petitioner adds: “Instead [of] taking a plea, in 20/20 hindsight the petitioner would have rather taken his chances at trial. The defense counsel’s only strategy was the plea bargain route.” Id. at 19. And, Stewart complains that his lawyer was “ineffective during the plea negotiations stage . . . .” (id.) because he did not “anticipat[e] a new change in law.” Id. at 20.
The government counters that defendant is “procedurally foreclosed” from rearguing issues that were decided on appeal, absent an “intervening change in the law.” ECF 50 at 3 (citing United States v. Dyess, 730 F.3d 354, 360 (4th Cir. 2013); United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009)). And, to the extent Stewart claims that, under ACCA, he does not qualify as an armed career criminal, the government contends that he has “forfeited” that argument under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), “because he failed to raise any such argument on direct appeal and cannot ‘show cause and actual prejudice resulting from the errors.’” ECF 50 at 2 (citation omitted). In any event, the government claims that the Petition fails on the merits.