United States District Court, D. Maryland
William M. Nickerson Senior United States District Judge
seven day jury trial, Petitioner Terrell Rogers was convicted
on June 9, 2010, of Possession of a Firearm by a Convicted
Felon, in violation of 18 U.S.C. § 922(g)(1); Possession
with Intent to Distribute Cocaine Base, in violation of 21
U.S.C. § 841; and Conspiracy to Engage in Witness
Tampering, in violation of 18 U.S.C. § 1512(k).
Petitioner was then sentenced on December 2, 2010, to a term
of 292 months imprisonment. On December 7, 2011,
Petitioner's conviction and sentence were affirmed by the
Fourth Circuit Court of Appeals. ECF No. 128. The Supreme
Court denied Petitioner's petition for writ of certiorari
on March 19, 2012.
February 6, 2013, Petitioner filed a timely Motion to Vacate,
Set Aside, or Correct a Sentence pursuant to 28 U.S.C. §
2255. ECF No. 130. The Court issued a Memorandum and Order
denying that motion on October 22, 2013. ECF Nos. 139 and
140. Petitioner filed a subsequent Motion to Vacate on April
7, 2014, ECF No. 14 6, which the Court found to be
procedurally barred as a successive petition and dismissed
that motion on August 6, 2014. ECF No. 151. Petitioner
appealed that dismissal on August 21, 2014, ECF No. 152, and
the Fourth Circuit again affirmed the judgment of this Court
on December 19, 2014. ECF No. 155.
6, 2016, the Fourth Circuit issued an order granting
authorization for Petitioner to file a successive § 2255
motion after concluding that Petitioner had made a prima
facie showing that the new rule of constitutional law
announced in Johnson v. United States, 135 S.Ct.
2551 (2015), and held to apply retroactively to cases on
collateral review by Welch v. United States, 136
S.Ct. 1257 (2016), might apply to his case. Petitioner then
filed a third § 2255 motion in this Court on June 30,
2.016. ECF No. 166. As the single ground for his motion,
Petitioner asserted that the Supreme Court mandate in
Johnson entitled him to relief from the Armed Career
Criminal Designation: "It is [Petitioner's] position
that his prior convictions are non-qualifying crimes for the
purpose of the Armed Career Criminal Act." Id.
Johnson, the Supreme Court invalidated the
"residual clause" that was included in the
definition of "violent felony in the Armed Career
Criminal Act (ACCA), concluding that it was
unconstitutionally vague. 135 S.Ct. at 2558. As the
Government points out in its Opposition to Petitioner's
motion, Petitioner was not sentenced as an armed career
criminal under the ACCA. ECF No. 170 at 3. His sentence was
determined, instead, pursuant to United States Sentencing
Guideline § 2A2.1. See Dec. 2, 2010, Tr. at
40-44. Accordingly, Johnson has no relevance to
Government also notes that, even if Petitioner had been
sentenced as an armed career criminal, he still has three
prior qualifying serious drug convictions that would not be
impacted by Johnson. Thus, post-Johnson, he
would still qualify as an armed career criminal. See
Presentence Report at ¶¶ 66, 68, 71.
filed a 35-page "Opposition to Government's Response
to 28 U.S.C. § 2255 Motion to Amend/Supplement Rule
15(c)(1)(B) 2255 Federal Habeas Corpus Proceedings" in
response to the Government's Opposition. ECF No.
178.In that submission, Petitioner never
directly addresses the Government's argument that
Johnson has no impact on the constitutionality of
his sentence. Instead, he requests that he be allowed to
supplement his § 2255 motion with "(3) additional
Issues/Grounds: (1) Ineffective Assistance of Counsel. (2)
Violation of This Petitioner['s] Constitutional Right to
Due Process. (3) Illegal Enhancements and Sentence."
Id. at 1. In presenting one aspect of his trial
counsel's performance that he alleges was ineffective,
Petitioner actually acknowledges that he was not sentenced as
an armed career criminal. He declares, "[d]uring the
sentencing phase, the issue of whether Petitioner was an
armed career criminal was tossed around only to be overruled
by the Prosecution's .leather eating request that
Petitioner be sentenced pursuant to the provisions of §
2A1.2, and the Court agreed."
merits of many of these "additional Issues/Grounds"
have been addressed in response to either the initial appeal
or Petitioner's previous § 2255 motions. Regardless,
they are not properly asserted in this motion.. The Fourth
Circuit authorized Petitioner to file a second or successive
§ 2255 motion to bring claims based on Johnson.
While the Fourth Circuit has held that petitioners can amend
an authorized § 2255 motion to bring additional claims
beyond the claim that generated that authorization, the
addition of those claims must satisfy Rule 15(a) and then
§ 2255(h). United States v. McDonald, 641 F.3d
596, 615-616 (4th Cir. 2011).
Petitioner's Motion to Amend/Supplement was not timely
under Rule 15(a). Even if it were, the claims do not satisfy
§ 2255(h), as none of those claims arise from:
(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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). Petitioner's additional claims
rely on neither "new facts" nor a "new rule of
constitutional law." For these reasons, Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence will be
denied. Petitioner's motion to amend will also be denied.
addition, the Court declines to issue a certificate of
appealability. A certificate of appealability may issue only
if petitioner "has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. §
2253(c)(2). The petitioner "must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
" Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(citation and internal quotation marks omitted), or that
"the issues presented are adequate to deserve
encouragement to proceed further, " Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Because ...