United States District Court, D. Maryland
Ellen L. Hollander, United States District Judge.
In this Memorandum, I must resolve a second post-conviction petition filed by Samuel Sterling under 28 U.S.C. § 2255. In light of Johnson v. United States, 135 S.Ct. 2551 (2015), Sterling contends that he was improperly designated as an Armed Career Criminal.
Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless he motion and the files and records conclusively show that the prisoner is entitled to no relief. . . .” This is such a case; no hearing is necessary. For the reasons that follow I shall deny the Petition.
I. Factual and Procedural Background
On July 18, 2012, Samuel Sterling was charged in a one-count indictment with the offense of possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). ECF 1. Sterling entered a plea of guilty on December 17, 2012 (ECF 21). Pursuant to the Plea Agreement (ECF 22), the plea was entered under Rule 11(c)(1)(C), with an agreed upon disposition of 180 months’ incarceration. Id. ¶¶ 8, 9. In addition, the parties agreed that Sterling qualified as an Armed Career Criminal, pursuant to 18 U.S.C. § 924(e). Id. ¶ 6(b).
Prior to Mr. Sterling’s sentencing, the United States Probation Office completed a Presentence Report (“PSR”). See ECF 25. The PSR determined that Mr. Sterling qualified as an Armed Career Criminal. Therefore, Mr. Sterling’s guidelines sentencing range called for a period of imprisonment of 188 to 235 months. This was based on an adjusted offense level of 31 and a criminal history category of VI. If Mr. Sterling were not an Armed Career Criminal, however, the PSR indicates that his adjusted offense level would have been a 25. Notably, the defendant had a total of 26 criminal history points. Therefore, whether or not the defendant was an Armed Career Criminal, his criminal history category was a VI.
Mr. Sterling’s defense attorney submitted a Sentencing Memorandum. ECF 27. In the Sentencing Memorandum, he requested imposition of the agreed upon sentence of 180 months’ imprisonment.
On May 6, 2013, in accordance with the C plea, Sterling was sentenced to 180 months of imprisonment. ECF 28. Judgment was entered on May 7, 2013. ECF 29; see also ECF 30. Approximately two years later, on May 15, 2015, Sterling filed a pro se motion to vacate his conviction and sentence, pursuant to 28 U.S.C. § 2255 (“Motion”). ECF 31. He supplemented his submission on May 26, 2015. ECF 33. The government opposed the Motion (ECF 34), urging dismissal of the Motion on the ground that it was untimely filed under 28 U.S.C. § 2255(f).
As noted, Sterling did not file his Petition until May 15, 2015, almost a year after expiration of the limitations period (ECF 31). Notably, he failed to allege any justification for his belated filing, nor did he set forth any grounds to warrant equitable tolling. Therefore, I concluded that the Petition was time barred. By Memorandum (ECF 35) and Order (ECF 36) of October 6, 2015, I dismissed the Petition, without issuance of a certificate of appealability.
Petitioner filed a Motion For Reconsideration on November 12, 2015 (ECF 37). In that submission, Sterling also challenged his status as an armed career criminal, based on the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Id.
By Order dated December 24, 2015 (ECF 38), I granted Sterling’s Motion For Reconsideration in part, and denied it, in part. In particular, I noted that the Supreme Court’s decision in Johnson was issued on June 26, 2015, after Sterling had already filed and supplemented his Motion to Vacate. Therefore, as to Sterling’s Johnson claim, I construed the Motion For Reconsideration as a Motion To Vacate Under 28 U.S.C. § 2255, and considered it timely filed. See 28 U.S.C. § 2255(f)(1)(3). But, I otherwise denied the Motion For Reconsideration. I also instructed the Clerk to docket ECF 37 as a second Motion To Vacate under 28 U.S.C. § 2255. See ECF 40.
On February 29, 2016, the government filed its response in opposition to ECF 40. See ECF 43. Mr. Sterling did not file a reply.
By Order dated April 26, 2016, I asked the Office of the Federal Public Defender to advise the Court as to whether it would represent Mr. Sterling in this matter. By letter dated May 2, 2016 (ECF 35), the Office of ...