United States District Court, D. Maryland
LIPTON HOLLANDER, District Judge.
September 30, 2014, Anthony Miles entered a guilty plea to
the charge of conspiracy to distribute and possession with
intent to distribute one kilogram or more of a substance
containing heroin, in violation of 21 U.S.C. Â§ 846. ECF 351;
ECF 352. At the sentencing held on March 20, 2015 (ECF 486),
the Court sentenced Mr. Miles to the statutory, mandatory
minimum term of imprisonment of 120 months. ECF 352 Â¶ 3; ECF
489 at 2; ECF 490.
Mr. Miles noted an appeal to the Fourth Circuit. ECF 488. His
appeal was subsequently dismissed by the Fourth Circuit (ECF
534; ECF 536), pursuant to the government's motion.
See ECF 533.
November 30, 2015, the Clerk received a letter from Mr.
Miles, dated November 23, 2015. ECF 541. It was docketed as a
Motion to Reduce Sentence. Id. In the letter, Mr.
Miles asked if he is "entitled to relief under United
States v. Johnson because the [prior] conviction is no longer
a crime of violent [sic]...." Id. at 1.
February 4, 2016, the government filed "Government's
Motion to Stay Proceedings" (the "Motion to
Stay"). ECF 548. The government indicated in ECF 548
that it construed Mr. Miles's letter of November 23,
2015, as a petition pursuant to 28 U.S.C. Â§ 2255.
Id. at 1. According to the government,
"petitioner's allegations implicate Johnson v.
United States, 135 S.Ct. 2551 (2015)." Therefore,
in light of Chief Judge Blake's Standing Order of
November 12, 2015, concerning Johnson challenges to
career offender sentences, the government asked the Court to
stay proceedings in this case. Id. By Order of
February 4, 2016, I granted the Motion to Stay. ECF 549.
March 1, 2016, the Clerk docketed Mr. Miles's
"Response to Gov. Motion to Stay." ECF 551. He
stated, id. Â¶ 3: "Defendant had no intention
when drafting his letter to move this Honorable Court under
28 U.S.C. Â§ 2255." By letter of March 2, 2016, I wrote
to Mr. Miles (ECF 553), stating, in part, id. at 1:
The Court did not construe your Motion to Reduce Sentence
(ECF 541) as a Motion to Vacate filed pursuant to 28 U.S.C. Â§
2255. However, the government did construe your motion as a Â§
2255 action in its Motion to Stay Proceedings (ECF 548).
Notably, that label does not control your case.
March 1, 2016, the Clerk also docketed a "Motion
Letter" from Mr. Miles, in which he requested the
appointment of counsel to permit him to file "a timely
Title 28 USC Â§ 2255 [petition] for Johnson relief.'"
ECF 552. In response, I wrote to the Office of the Federal
Public Defender on March 2, 2016, asking that office to
advise Mr. Miles as to whether it would enter an appearance
on Mr. Miles's behalf. ECF 554.
the stay (or my letter to Mr. Miles of March 1, 2016, ECF
553), the government filed "Government's Response to
Motion to Vacate, Set Aside or Correct Sentence Pursuant
to 28 U.S.C. Â§ 2255 " ("Opposition")
(emphasis added). ECF 555. In its Opposition, the government
stated that "the Federal Defender's Office has
notified this Office that they will not represent the
Petitioner." Id. at 4. The government did not
address the stay or the issue of whether Mr. Miles's
submission in ECF 541 constituted a motion for reduction of
sentence or, instead, a Â§ 2255 petition.
Miles did not respond to the government's Opposition (ECF
555). Therefore, on April 5, 2016, a month after the
government filed its Opposition (ECF 555), and having
received no objection or response to it from Mr. Miles, I
issued a Memorandum (ECF 557) and Order (ECF 558), in which I
construed Mr. Miles's letter of November 23, 2015 (ECF
541) as a petition pursuant to Â§ 2255. And, I denied the
April 28, 2016, the Clerk docketed a "Motion" from
Mr. Miles, filed pursuant to Fed.R.Civ.P. 59(e), seeking to
alter or amend the Court's Order of April 5, 2016. ECF
559. Mr. Miles avers that the Court erred in construing his
letter of November 23, 2015 (ECF 541) as a petition pursuant
to Â§ 2255, without prior notice. By Order of April 29, 2016,
I directed the government to respond to Mr. Miles's
Motion to Alter or Amend. ECF 560.
government responded to ECF 559 by letter dated April 29,
2016. ECF 561. Although the government had previously opposed
what it had characterized as a Â§ 2255 petition (ECF 555), the
government said, ECF 561 at 1: "It is the
government's position that Petitioner's motion (ECF
541) should not count as a Â§ 2255 motion for purposes of
applying Â§ 2255's second or successive' provision
because Petitioner was not provided an opportunity to
withdraw his motion upon learning that the motion was
recharacterized as a Â§ 2255 [petition]. See
Castro v. United States, 540 U.S. 375, 377
(2003)." In Castro, the Supreme Court said,
id.: "[T]he court cannot... recharacterize a
pro se litigant's motion as the litigant's first Â§
2255 motion unless the court informs the litigant of its
intent to recharacterize, warns the litigant that the
recharacterization will subject subsequent Â§ 2255 motions to
the law's second or successive' restrictions, and
provides the litigant with an opportunity to withdraw, or to
amend, the filing."
with both parties. In light of the foregoing, I shall grant
Mr. Miles's Motion (ECF 559). Therefore, Mr. Miles's
correspondence of November 23, 2016 (ECF 541) shall not be
deemed a first petition under 28 U.S.C. Â§ 2255. Moreover, I
shall vacate my Memorandum (ECF 557) and Order (ECF 558) of
April 5, 2016, because I erroneously analyzed ECF 541 as if
it were a Â§ 2255 petition.
out in the Order that follows, Mr. Miles will be directed to
advise the Court whether he wishes to withdraw or amend ECF
541. And, the government shall be directed to respond to ECF
541 as ...