United States District Court, D. Maryland
Lipton Hollander United States District Judge.
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. 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
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. Gary has not replied to the Second
Opposition and the time to do so has expired. See
Local Rule 105.2(a).
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.
Factual and Procedural Background
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.
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.”).
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.
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
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.
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.
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.
address Gary’s Petition (ECF 1359) and his Supplemental
Petition (ECF 1473) in turn.
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.
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
(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 ...