United States District Court, D. Maryland
L. Hollander United States District Judge.
Hardy, the self-represented petitioner, entered a plea of
guilty on March 19, 2013, to conspiracy to distribute and
possession with intent to distribute one kilogram of heroin,
five kilograms or more of cocaine, and a quantity of cocaine
base, in violation of 21 U.S.C. § 846. See ECF
306; ECF 309. The Plea Agreement (ECF 309) reflects that the
plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C)
(id. ¶ 5), in which the parties agreed to a
sentence of 16 years' imprisonment (192 months).
Id. ¶ 10. On May 14, 2013, in accordance with
the Plea Agreement, Hardy was sentenced to a term of
imprisonment of 192 months. ECF 334; ECF 335; ECF 349.
Hardy noted an appeal to the Fourth Circuit. ECF 358. On
February 25, 2014, the Fourth Circuit affirmed in part and
dismissed in part. ECF 413. The mandate issued on March 19,
2014. ECF 418.
post-appeal procedural history of this case is extensive.
Hardy has submitted a potpourri of challenges (see
e.g., ECF 440; ECF 470; ECF 492); objections to routine
motions (see, e.g., ECF 503; 505); and other
correspondence (see, e.g., ECF 467; ECF 471; ECF
relevance here, Hardy filed a petition pursuant to 28 U.S.C.
§ 2255 on November 17, 2014, claiming that he had
received ineffective assistance of counsel from the two
attorneys who represented him at various times. ECF 440
(“First Petition”). The government filed an
opposition on February 25, 2015 (ECF 447), with numerous
26, 2016, while the First Petition was pending, Hardy filed a
Motion to Reduce Sentence under 18 U.S.C. § 3582. ECF
470. The government opposed that motion. ECF 474. Hardy
replied on July 11, 2016. ECF 485.
denied the Motion to Reduce Sentence by Order of July 12,
2016. ECF 486. My reasons are set forth in ECF 488. Hardy
noted an appeal to the Fourth Circuit from my ruling.
See ECF 488; ECF 489; ECF 490; ECF 491. By
Memorandum and Order of September 16, 2016, I denied the
First Petition. ECF 496; ECF 497. The docket does not reflect
that Hardy filed an appeal from that ruling.
August 8, 2016, while Hardy's First Petition was pending,
Hardy filed a “Motion to Strike Indictment; Vacate
Indictment, Conviction and Dismiss for Fraud on Court.”
ECF 492 (“Motion”). The Motion also includes
exhibits. ECF 492-2 through ECF 492-5. The government filed
its response on November 25, 2016 (ECF 507,
“Opposition”) and Hardy replied on December 12,
2016. ECF 509. For the reasons discussed, infra, I
shall construe the Motion as a second petition under 28
U.S.C. § 2255. See Castro v. United States, 540
U.S. 375, 381 (2003).
November 10, 2016, Hardy also filed a “Motion to
Rescind Improvidently Granted Order.” ECF 505
(“Motion to Rescind”). The Motion to Rescind is
rooted in the government's request on September 27, 2016,
in ECF 499, for additional time in which to respond to the
Motion. I granted the government's request by Order of
September 28, 2016. ECF 500. However, my Order provided that
Hardy could “move to rescind this Order as
improvidently granted.” Id.
October 24, 2016, Hardy responded in opposition to the
government's request for additional time. ECF 503. By
Order of October 25, 2016 (ECF 504), I noted that I was
satisfied that the government had shown good cause in
requesting additional time, and I declined to rescind ECF
500. Then, on November 10, 2016, Hardy filed the
“Motion to Rescind.” ECF 505. In that motion,
Hardy has asked me to rescind my Order of September 27, 2016
hearing is necessary to resolve the motions. See
Local Rule 105.6; 28 U.S.C. § 2255(b). For the reasons
stated below, I shall deny the Motion. See 28 U.S.C.
§ 2255(h); see also United States v. Winestock,
340 F.3d 200, 205 (4th Cir. 2003). And, for the reasons
stated in ECF 504, which I incorporate here, I shall deny the
Motion to Rescind.
Motion, Hardy challenges his conviction on the grounds that
the government “misrepresented to the grand jury and
counsel for the defendant and this honorable court that the
evidence against defendant was overwhelming . . . .”
ECF 492 at 2. He maintains that he was advised to plead
guilty “by an abandoned and cooperating with the
Government Defense Counsel.” Id. at 3.
Curiously, Hardy argues that the government “conceded
misconduct and fraud upon the Court” (id. at
1), apparently because the Staff Attorney's Office
informed him that there is no “‘Custody of
Evidence Receipt'” on the docket. Id. at
3; see ECF 492-2. Hardy states: “The
government admitted that it obtained a conviction in the
above-captioned matter without any evidence to sustain a
criminal conviction . . . .” ECF 492 at
2255(a) of Title 28 of the United States Code provides relief
to a prisoner in federal custody only on specific grounds:
that the sentence was imposed in violation of the
Constitution or laws of the United States; that the court was
without jurisdiction to impose such a sentence; that the
sentence was in excess of the maximum authorized by law; or
that the ...