United States District Court, D. Maryland
L. Hollander United States District Judge
Superseding Indictment (ECF 5) filed on June 25, 2013, James
Kidd was charged, inter alia, with carjacking, in
violation of 18 U.S.C. § 2119(1); brandishing a firearm
in furtherance of a crime of violence, in violation of 18
U.S.C. § 2119(a) and 18 U.S.C. § 924(c); and
possession of a firearm and ammunition by a felon, in
violation of 18 U.S.C. § 922(g)(1). He entered a plea of
guilty to carjacking (Count Two) on March 13, 2014 (ECF 31),
pursuant to a written plea agreement. ECF 32 ("Plea
Agreement"). The offense of conviction carries a maximum
sentence of 15 years' imprisonment.
Kidd's guilty plea was entered pursuant to Fed. R. Crim.
P. 11(c)(1)(C), by which the parties stipulated to a sentence
of 180 months' imprisonment. ECF 32, ¶ 7. On
September 15, 2014, the Court imposed the agreed upon
sentence. ECF 41; ECF 42; ECF 43.
September 26, 2016, Kidd filed a Motion to Vacate, Set Aside,
or Correct Sentence, pursuant to 28 U.S.C. § 2255. ECF
54 ("Petition"). Relying on Johnson v. United
States, 135 S.Ct. 2251 (2015), Kidd asserts: "I no
longer qualify as a career offender." ECF 54 at 5. In
response, the government has moved to dismiss the Petition as
untimely. ECF 57 ("Motion"). Mr. Kidd did not
reply, and the time to do so has long expired.
discussed below, no hearing is necessary to resolve the
Petition. And, for the reasons stated, I shall grant the
paragraph 6(a) of the Plea Agreement (ECF 32), the defendant
stipulated that the facts in Attachment A to the Plea
Agreement established that he committed the crimes of
carjacking and felon in possession. Notably, the facts
reflect that, during the carjacking, Kidd "took out a
silver handgun, racked the slide to load the gun, [and]
pointed it at the driver . . . ." ECF 32 at 9. In
Paragraph 6(b) of the Plea Agreement (ECF 32), Kidd agreed
that he qualified as a "Career Offender." Kidd also
agreed that "an upward variance is appropriate in light
of the dismissed counts." ECF 32, ¶ 6(f).
Amended Presentence Report ("PSR, " ECF 44)
reflects that Kidd had a total of 24 criminal history points.
ECF 44, ¶ 52. Therefore, he had a criminal history
category of VI. ECF 44, ¶ 52.
the prior offenses are particularly relevant. One was for the
offense of distribution of heroin and the other for armed
robbery. These offenses are discussed, infra. Based
on these offenses, Kidd qualified as a Career Offender under
U.S.S.G. § 4B1.1. ECF 44, ¶¶ 24, 53. As a
Career Offender, he also had a criminal history category of
VI. Id. ¶ 53.
final adjusted offense level was 26. Id. ¶ 26.
With a criminal history category of VI, Kidd's advisory
sentencing guidelines called for a period of imprisonment
ranging from 120 to 150 months of imprisonment. ECF 44,
¶ 63. As noted, under the terms of the "C
Plea, " the Court imposed a sentence of 180 months.
was entered on September 15, 2014. ECF 42. No appeal was
taken. See Docket.
2255(a) of Title 28 of the United States Code, under which
Kidd 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.
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.
reviewing the 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