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Gary v. United States

United States District Court, D. Maryland

August 17, 2016

KEVIN GARY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. ELH-08-086

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge.

         In 2009, Kevin Gary entered a plea of guilty to the offense of conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). ECF 467. He was sentenced by Judge William D. Quarles, Jr. to a term of imprisonment of 360 months. ECF 513.[1] In September 2013, Gary filed a “Motion to Vacate, Set Aside, or Correct Sentence” (the “Petition”), pursuant to 28 U.S.C. § 2255. ECF 1359. In particular, Gary argued that, in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), Judge Quarles should not have sentenced him as a career offender. Id. at 4-5. The government filed an opposition. ECF 1372 (the “First Opposition”), along with three exhibits. ECF 1372-1 through ECF 1372-3. Gary replied. ECF 1396 (the “Reply”).

         On May 5, 2016, the Clerk docketed Gary’s “Motion Under 2255 In Light Of Johnson v. United States.” ECF 1473 (the “Supplemental Petition”). The government subsequently filed an opposition (ECF 1476, the “Second Opposition”), along with an exhibit. ECF 1476-1.[2] Gary has not replied to the Second Opposition and the time to do so has expired. See Local Rule 105.2(a).

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case 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 and the Supplemental Petition.

         I. Factual and Procedural Background

         Gary was indicted on February 21, 2008, on multiple charges, including conspiracy to participate in a racketeering enterprise, in violation of 18 U.S.C. § 1962(d). ECF 1. He was one of twenty-eight defendants. On January 9, 2009, Gary entered a plea of guilty to the racketeering charge (ECF 467), pursuant to a Plea Agreement dated December 31, 2008. ECF 468.

         The plea was entered under Fed. R. Crim. P. 11(c)(1)(C). Id. at 5 ¶ 9. Pursuant to the terms of the “C plea, ” the parties jointly recommended a term of imprisonment of 360 months. Id. In ¶ 7 of the Plea Agreement, the parties stipulated that Gary qualified as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“Sentencing Guidelines” or “U.S.S.G.”).

         According to the “Stipulated Facts” contained in the Plea Agreement, Gary held a position of leadership in the Tree Top Pirus Gang, a subset of the “Bloods.” See generally Id. at 8-18. Wiretap evidence showed that Gary, inter alia, facilitated drug transactions; ordered his subordinates to commit acts of violence; and organized the distribution of firearms. Id. at 12-17. Gary also stipulated to having sold narcotics (id. at 14) and to having participated in a gang-related murder. Id. at 15.

         On March 27, 2009, Judge Quarles sentenced Gary to a term of imprisonment of 360 months, in accordance with the Plea Agreement. ECF 511; ECF 513. The following day, March 28, 2009, Gary noted an appeal to the Fourth Circuit. ECF 512. On December 29, 2010, the Fourth Circuit affirmed Gary’s conviction and dismissed his appeal as to his sentence. See United States v. Penix and Gary, 406 Fed. App’x 744 (4th Cir. 2010) (per curiam); see also ECF 1138. The mandate issued on January 20, 2011. ECF 1137. Gary did not seek a writ of certiorari to the Supreme Court.

         More than two and a half years later, on September 19, 2013, Gary filed his Petition. ECF 1359. And, as noted, on May 5, 2016, Gary filed his Supplemental Petition. ECF 1473.

         By Order of April 22, 2016 (ECF 1470), I directed the Office of the United States Attorney to advise the Court whether it believed that this case should be added to the Standing Order, in connection with cases implicated by Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). See Standing Order 2015-06 (Nov. 12, 2015), Misc. No. 00-308, In Re: 28 U.S.C. §§ 2255 and 2241 Motions For Career Offender Sentencing Reductions and Vacatur of 18 U.S.C. § 924(c) Conviction[s] (ECF 65); see also Standing Order 2016-03, Misc. No. 00-0308, In re: 28 U.S.C. 2255 Motions for Vacatur of Convictions Under Johnson v. United States, Misc. No. 00-308 (ECF 69; ECF 69-1). I also directed the Office of the Federal Public Defender (“OFPD”) to advise the Court whether it would represent Gary in this case. ECF 1470. By letter to the Court of May 2, 2016 (ECF 1471), the OFPD indicated that it would “not be asking for appointment in his case.” In a letter to Gary of May 2, 2016, I notified Gary that “the Public Defender is unwilling to represent [him] in regard to [the] motion to vacate under 28 U.S.C. § 2255.” ECF 1472.

         In a letter to the Court dated May 6, 2016 (ECF 1474), the government stated, ECF 1474: “The government is prepared to respond to the petitioner’s Johnson claims and does not believe that there is a need to have this case stayed under the Johnson Standing Order.” By Order of May 6, 2016 (ECF 1475), I approved the government’s request to respond to Gary’s Supplemental Petition.

         I address Gary’s Petition (ECF 1359) and his Supplemental Petition (ECF 1473) in turn.

         II. Discussion

         A. The Petition

         As discussed, the Fourth Circuit affirmed Gary’s conviction on December 29, 2010. ECF 1138. The mandate issued on January 20, 2011 (ECF 1137) and Gary did not seek a writ of certiorari to the Supreme Court. His Petition was docketed in this Court on September 19, 2013. ECF 1359.

         A one-year statute of limitations applies to § 2255 petitions. See 28 U.S.C. § 2255(f). Under § 2255(f), limitations runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...

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