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Evans v. United states

United States District Court, D. Maryland

March 27, 2017

MATTHEW EVANS Petitioner,
v.
UNITED STATES OF AMERICA Respondent Criminal Action No. ELH-05-259

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         On March 30, 2007, Matthew Troy Evans, the self-represented petitioner, was found guilty by a jury of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One); possession of body armor by a person convicted of a crime of violence, in violation of 18 U.S.C. § 931 (Count Two); and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). On October 19, 2007, Judge Andre Davis[1] determined that Evans qualified as an Armed Career Criminal and sentenced Evans to a total term of incarceration of 235 months.[2] ECF 43; see 18 U.S.C. § 922(g)(1); 18 U.S.C § 924 (e)(1); see also ECF 50 (Sentencing Tr. of Oct. 19, 2007) at 68-69.

         Evans noted an appeal to the Fourth Circuit (ECF 45), which affirmed on February 18, 2010. See ECF 59; United States v. Evans, 361 Fed. App‘x 524, 525 (4th Cir. 2010). The Supreme Court denied Evans‘s petition for a writ of certiorari. Evans v. United States, 560 U.S. 918 (2010).

         Thereafter, on May 16, 2011, Evans filed a motion to vacate under 28 U.S.C. § 2255 (ECF 61), which he supplemented on May 27, 2011 (ECF 63) (collectively, "First Petition"). The government opposed the First Petition (ECF 67) and Evans replied. ECF 70. In a Memorandum Opinion (ECF 72) and Order (ECF 73) of March 29, 2012, Judge Quarles granted the First Petition in part and denied it in part. In particular, the Court agreed with both Evans and the government that Evans was unlawfully convicted of unlawful possession of body armor. ECF 72 at 12-15; ECF 73. Therefore, Judge Quarles vacated the conviction for Count Two as well as the corresponding 36-month sentence. ECF 73. Judge Quarles rejected all other claims.

         Thereafter, on June 6, 2012, Evans noted an appeal to the Court of Appeals for the Fourth Circuit. ECF 74. The Fourth Circuit dismissed the appeal on August 21, 2012. ECF 78. Evans‘s petition for a rehearing en banc (ECF 80) was denied on October 30, 2012. ECF 81.[3]The mandate issued on November 13, 2012. ECF 82.

         On October 3, 2016, Evans filed a second Motion to Vacate, Set Aside, or Correct a Sentence ("Second Petition"), pursuant to 28 U.S.C. § 2255. ECF 84. He relies on Johnson v.United States, ______U.S., _____ 135 S.Ct. 2551 (2015). In a skeletal, bare-bones submission, the government moved to dismiss the Petition (ECF 86, "Motion") on the ground that it was untimely. The government did not address Evans‘s submission in 2011 of the First Petition under 28 U.S.C. § 2255, or the significance of the submission of the Second Petition, without prior approval of the Fourth Circuit. Evans filed a lengthy reply to the Motion on December 12, 2016. ECF 87 ("Reply").

         I. Discussion[4]

A.

         Section 2255(a) of Title 28 of the United States Code, under which Evans filed his Petition, 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 sentence is otherwise subject to collateral attack.

         Under 28 U.S.C. § 2255(b), the court must hold a hearing "[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief. . . ." See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have determined that a hearing is not necessary where "the motion . . . fail[s] to allege sufficient facts or circumstances upon which the elements of constitutionally deficient performance might properly be found [or] where the defendant has failed to present any affidavits or other evidentiary support for the naked assertions contained in his motion." United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v. McGill, 11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a hearing is generally "required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to resolve this issue." United States v. Robertson, 219 Fed. App‘x 286, 286 (4th Cir. 2007); see also United States v. Ray, 547 Fed. App‘x 343, 345 (4th Cir. 2013).

         In reviewing the Second Petition, the Court is mindful that a self-represented litigant is generally "held to a ‗less stringent standard[ ]‘ than is a lawyer, and the Court must liberally construe his claims, no matter how ‗inartfully‘ pled." Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held "to less stringent standards than formal pleadings drafted by lawyers"); Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 Fed.App'x 332, 334 (4th Cir. 2013) (same). Nevertheless, in my view, no hearing is necessary to resolve Evans‘s claims.

         B.

         In the Second Petition, Evans claims that the Court should not have sentenced him as an Armed Career Criminal in light of the Supreme Court‘s decision in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). ECF 84. In Johnson, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), ruling that the definition of a "violent felony" was unconstitutionally vague. 135 S.Ct. at 2555-57. The Court determined that the residual clause "did not articulate clearly how to evaluate the risks of injury posed by a crime, depriving defendants of fair notice regarding their potential sentence and inviting ‗arbitrary enforcement by judges.‘" United States v. Winston, F.3d, 2017 WL 977031, at *2 (4th Cir. Mar. 13, 2017) (explaining and quoting Johnson, 135 S.Ct. at 2557). The Supreme Court has also recognized that Johnson announced a new substantive rule of constitutional law, which applies retroactively on collateral review. Welch v. United States, U.S., 136 S.Ct. 1257, 1264-65 (2016).

         However, this is Evans‘s Second Petition. Therefore, 28 U.S.C. § 2255(h) is pertinent. It provides:

         A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

         A second or successive petition must be authorized by the appropriate appellate court. See Winston, supra, 2017 WL 977031, at *3; United States v. Poole, 531 F.3d 263, 266 n.4 (4th Cir. 2008). There is no indication that Evans sought or obtained such authorization.

         Nevertheless, the Fourth Circuit has recognized that not every second petition filed under § 2255 is a "second or subsequent" one within the meaning of § 2255(h). To illustrate, a petition following a resentencing is not a second petition. See, e.g., United States v. Jones, No. 16-6552, 2017 WL 1040471 (4th Cir. Mar. 17, 2017) (per curiam); In re Gray, F.3d, ...


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