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Mamalis v. United States

United States District Court, D. Maryland

April 5, 2016

NIKOLAOS MAMALIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

The pro se Petitioner Nikolaos Mamalis ("Petitioner" or "Mamalis") was convicted on seven counts following an eight day jury trial in this Court.[1] J., p. 1, ECF No. 214. Count One charged Petitioner with Hobbs Act Conspiracy, in violation of 18 U.S.C. § 1951(a); Counts Two, Four, and Six charged Petitioner with Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a); and Counts Three, Five, and Seven charged Petitioner with Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c). Id. at 1-2. Counts Two through Seven included charges of aiding and abetting, in violation of 18 U.S.C. § 2. Id. Subsequently, Judge Benson E. Legg of this Court sentenced Petitioner to concurrent sentences of twenty (20) years imprisonment as to Counts One, Two, Four, and Six and consecutive sentences of seven (7) years, twenty-five (25) years, and twenty-five (25) years imprisonment as to Counts Three, Five, and Seven respectively, for a total term of seventy-seven (77) years imprisonment. Id. at 3. Currently pending before this Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 295), Motion for Leave to Amend the pending Motion to Vacate (ECF No. 303)[2], and Motion for Return of Property (ECF No. 316). Also pending before this Court is an additional Motion for Return of Property (ECF No. 6), docketed in Civil Action No. RDB-15-2504.[3] The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014).

For the reasons that follow, Petitioner's Motion to Vacate (ECF No. 295) is DENIED IN PART and STAYED IN PART. Specifically, Petitioner's Motion to Vacate is DENIED with respect to his convictions on Counts One, Two, Four, and Six and sentences as to those four counts. Accordingly, his convictions on Counts One, Two, Four, and Six and concurrent twenty (20) year sentences as to those convictions remain unaltered. Petitioner's Motion to Vacate is STAYED with respect to Counts Three, Five, and Seven, violations of 18 U.S.C. § 924(c), pursuant to this Court's Standing Order 2015-06, Misc. No. 00-308, issued November 12, 2015 (Standing Orders ECF No. 65).[4] Additionally, Petitioner's Motion for Return of Property (ECF No. 316) is GRANTED IN PART and DENIED IN PART. Specifically, the $5, 000 in cash; AEI Bersa.380 caliber handgun, Model 85, serial number 221692; nine (9).380 FC cartridges; and one.380 handgun magazine, currently in the custody of the Federal Bureau of Investigation, shall be remitted to the Clerk of this Court and applied to Petitioner's unpaid restitution balance. However, any additional property belonging to the Petitioner that is currently in the possession of the Government shall be returned to Petitioner. Petitioner shall appoint a third party to accept that property.

BACKGROUND

Documents filed pro se are "liberally construed" and are "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). The facts of this case are as follows:

Between July and November of 2009, Petitioner Nikolaos Mamalis ("Petitioner" or "Mamalis") and four co-conspirators committed a total of three armed robberies. United States v. Mamalis, 498 F.Appx. 240, 243 (4th Cir. 2012). Mamalis "knew the victims, assisted with the planning of the robberies and surveillance of the victims, and coordinated [his co-conspirators'] actions via a cell phone during the robberies." Id.

On July 29, 2009, Mamalis and two of his co-conspirators robbed Precision Vending, "a private business in Baltimore, Maryland." Id. Mamalis was familiar with the store. Id. "Once the owner was alone in the building, [the co-conspirators] impersonated delivery men, gained access to the store, brandished a firearm, and stole over $10, 000." Id.

On September 2, 2009, Mamalis and two of his co-conspirators "robbed the home of the owner of Citizens Pharmacy Services, another of Mamalis' acquaintances." Id. The two co-conspirators "impersonated law enforcement investigators, gained access to the gated community and then the home, brandished a firearm at the owner and his wife, and absconded with jewelry and cash." Id.

Finally, on September 29, 2009, Mamalis and three co-conspirators "robbed the home of the owner of Sparrow's Point Restaurant, yet another of Mamalis' acquaintances." Id. This time, one of Mamalis' co-conspirators "impersonated an investigator with the Baltimore County State's Attorney's Office, gained access to the home, brandished a firearm at the owner and restrained him, allowing the defendants to steal over $110, 000." Id.

Through wiretap interceptions, law enforcement learned that Mamalis planned to commit another robbery in Atlantic City, New Jersey. Id. In November of 2009, law enforcement began surveillance of Mamalis and his co-conspirators in Baltimore and followed them to Atlantic City. Id. In Atlantic City, law enforcement officials arrested Mamalis and two of his co-conspirators. Id. Subsequently, they searched the vehicle of one of the con-conspirators "and discovered mace, rope, rubber gloves, handcuffs, empty money bags, a knife, tape, and fake law enforcement identification." Id. "Pursuant to a search warrant, officials then searched Mamalis' hotel room and recovered a cell phone, hotel receipts, a wallet, ... a sock containing jewelry, and other items." Id. Officials later recovered a firearm and a firearm box during a search of Mamalis' residence. Id.

Mamalis was indicted on seven counts. Id. Count One charged Mamalis with Hobbs Act Conspiracy, in violation of 18 U.S.C. § 1951(a); Counts Two, Four, and Six charged Mamalis with Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a); and Counts Three, Five, and Seven charged Mamalis with Using and Carrying a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c). Third Superseding Indictment, ECF No. 136. Counts Two through Seven included charges of aiding and abetting, in violation of 18 U.S.C. § 2. Id.

Mamalis filed "several motions to suppress tangible evidence, wiretap evidence, and various statements, " but Judge Benson E. Legg of this Court denied these motions following a suppression hearing. Mamalis, 498 F.Appx. at 243-44. At the conclusion of an eight day jury trial in this Court, over which Judge Legg presided, Mamalis was convicted on all seven counts. Id. at 244; Verdict Form, ECF No. 173.

Subsequently, Judge Legg sentenced Petitioner to twenty (20) years imprisonment to run concurrently for the Conspiracy to commit a Hobbs Act Robbery (Count One) and the three Hobbs Act Robberies (Counts Two, Four, and Six); seven (7) years imprisonment to run consecutively for using a firearm in relation to the conspiracy in Count One and the Hobbs Act Robbery in Count Two (Count Three); twenty-five (25) years imprisonment to run consecutively for using a firearm in relation to the conspiracy in Count One and the Hobbs Act Robbery in Count Four (Count Five); and twenty-five (25) years imprisonment to run consecutively for using a firearm in relation to the conspiracy in Count One and the Hobbs Act Robbery in Count Six (Count Seven). Id. Accordingly, this Court sentenced Mamalis to a total of seventy-seven (77) years imprisonment. Id.

On June 30, 2011, Petitioner noted an appeal (ECF No. 217) to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit affirmed this Court's judgment on December 4, 2012, see Mamalis, 498 Fed.App'x at 240, and issued its formal mandate on January 8, 2013 (ECF No. 264). On March 30, 2014, Mamalis executed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 295), which was filed in this Court on April 9, 2014.[5] Subsequently, he filed a Motion for Leave to Amend his Motion to Vacate (ECF No. 303) and a Motion for Return of Property (ECF No. 316).

STANDARD OF REVIEW

Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence where: (1) "the sentence was imposed in violation of the Constitution or laws of the United States;" (2) the court lacked "jurisdiction to impose the sentence;... [(3)] the sentence was in excess of the maximum authorized by law; or [(4) the sentence] is otherwise subject to a collateral attack." 28 U.S.C. § 2255. "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

DISCUSSION

I. Petitioner's Concurrent Twenty Year Sentences as to Counts Two, Four, and Six (Hobbs Act Robbery) and Count One (Conspiracy to Commit Hobbs Act Robbery) Were Properly Imposed

Petitioner claims that his sentence as to Count One, Conspiracy to Commit Hobbs Act Robbery, was imposed in violation of the Sixth Amendment to the United States Constitution and the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004). Mem. Supp. Mot. to Vacate, p. 1-2, ECF No. 295-1.

In Blakely v. Washington , the United States Supreme Court held that facts increasing the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and must be proved beyond a reasonable doubt. Blakely, 542 U.S. at 306. Blakely applies to the now-advisory Federal Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 226-27, 245 (2005). Although Blakely prohibits judicial fact-finding to support a sentence beyond the statutory maximum, courts can make factual findings to determine an appropriate sentence at or below that maximum. See United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) ("Sentencing judges may find facts relevant to determining a Guidelines range by a preponderance of the evidence, so long as that Guidelines sentence is treated as advisory and falls within the statutory maximum authorized by the jury's verdict").

Petitioner argues that this Court impermissibly "grounded [his] penalty on the judicially found fact convicting Mamalis of manslaughter[6]." Mem. Supp. Mot. to Vacate, p. 2, ECF No. 295-1. Evidence introduced before Judge Legg indicated that a man named Constantine Frank was bound and restrained during the commission of the Precision Vending robbery. He was found unconscious sometime after the robbery and died less than two weeks later due to intracerebral hemorrhage associated with stress resulting from the robbery. For these reasons, Judge Legg found that the "felony murder" provision of sections 2B and 2A1.1 of the Federal Sentencing Guidelines Applied. Sentencing Transc., p. 9-18, ECF No. 238. Accordingly, because Constantine Frank died "as a result of" the Precision Vending robbery, Petitioner was sentenced at a base level between 38 and ...


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