United States District Court, D. Maryland
L. HOLLANDER, District Judge.
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.
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.
Factual and Procedural Background
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).
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.
Sterling's defense attorney submitted a Sentencing
Memorandum. ECF 27. In the Sentencing Memorandum, he
requested imposition of the agreed upon sentence of 180
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).
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.
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
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.
February 29, 2016, the government filed its response in
opposition to ECF 40. See ECF 43. Mr. Sterling did
not file a reply.
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 ...