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Grant v. United States

United States District Court, D. Maryland

May 11, 2017

LEON PALMER GRANT Petitioner,
v.
UNITED STATES OF AMERICA Respondent. Civil Action No. ELH-14-1846

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         This Memorandum resolves the ''Motion to Correct Sentence under 28 U.S.C. § 2255, '' filed by Leon Palmer Grant. ECF 423 (''Petition''). In the Petition, Grant complains that he was improperly designated as a career offender, because his prior Maryland conviction for second-degree assault is not a qualifying predicate offense under Descamps v. United States, __U.S.__, 133 S.Ct. 2276 (2013) and United States v. Royal, 731 F.3d 333 (4th Cir. 2013), cert. denied, __U.S.__, 134 S.Ct. 1777 (2014).[1] The government opposes the Petition. ECF 512. Grant did not reply, and the time for him to do so has expired. See Local Rule 105.2.

         As discussed, infra, no hearing is necessary to resolve the Petition. For the reasons that follow, I shall dismiss the Petition as untimely filed.

         I. Factual and Procedural Background

         Grant and eight others were charged in a Superseding Indictment (ECF 44) with various drug trafficking charges. On June 25, 2012, Grant entered a plea of guilty to conspiracy to distribute and possess with intent to distribute a quantity of heroin and a quantity of cocaine, in violation of 21 U.S.C. § 846. ECF 201. The offense to which Grant pleaded guilty was a lesser included offense of Count One of the Superseding Indictment. See ECF 206 (Plea Agreement) at 1. Notably, Grant‘s plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C), in which the parties agreed to a sentence of imprisonment of 66 months as the appropriate disposition. See ECF 206, ¶¶ 5, 9. In the Plea Agreement, Grant stipulated that he qualified as a career offender under U.S.S.G. § 4B1.1(a). See ECF 206, ¶ 7.

         Sentencing was held on August 9, 2012. ECF 225. At sentencing, after a discussion of Grants‘ prior convictions, the Court determined that Grant qualified as a career offender under U.S.S.G. § 4B1.1. See ECF 434 (sentencing transcript) at 3-11. The Presentence Report (''PSR'') reflects that Grant had a final offense level of 29, and a criminal history category of VI, based on his career offender designation. See PSR, ¶ 45.[2] Without the career offender designation, Grant‘s final offense level would have been 21, and his criminal history category would have been V. See Id. ¶¶ 19, 37.

         In accordance with the terms of the ''C plea, '' Grant was sentenced to a term of imprisonment of 66 months, followed by three years of supervised release. See ECF 228 (Judgment). That sentence was well below both the advisory sentencing guidelines range applicable to a career offender (i.e., 151 to 188 months), and also below the advisory sentencing guidelines range if Grant were not a career offender (i.e., 70 to 87 months). See PSR; ECF 512 at 2. Grant did not appeal to the Fourth Circuit.

         On June 9, 2014, the Office of the Federal Public Defender (''FPD'') filed the Petition on behalf of Grant. ECF 423. In relevant part, the Petition states, id. at 1:

One of the two requisite prior convictions that subjected [Mr. Grant] to a career offender sentence was his Maryland second degree assault conviction. However, in light of the Supreme Court‘s recent decision in Descamps v. United States, 133 S.Ct. 2276 (2013), and the Fourth Circuit‘s subsequent decision in United States v. Royal, 731 F.3d 333, 340-42 (4th Cir. 2013), Mr. Grant is no longer a career offender.

         Also on June 9, 2014, the FPD filed a ''Motion for Appointment of Counsel in 28 U.S.C. § 2255 Proceeding'' (ECF 424), which I granted by Order of June 12, 2014. ECF 425. Then, on June 13, 2014, I directed the government to respond to the Petition within sixty days. ECF 426.

         The government failed to respond to the Petition within the time directed in the Order of June 13, 2014. Therefore, by Order of August 26, 2014, I directed the government either to respond to the Petition by September 8, 2014, or file a motion to extend the time to respond. ECF 435. The same day, the government moved to extend the response deadline until ''60 days after the Court of Appeals for the Fourth Circuit issues a decision upon rehearing en banc in United States v. Whiteside, No. 13-7152.'' ECF 436. The government explained that the Fourth Circuit‘s decision in Whiteside could affect Grant‘s Petition. Id. I granted ECF 436 by Order of August 26, 2014. ECF 437.

         On January 16, 2015, Chief Judge Blake issued Standing Order 2015-01, MC-00-308, noting that many § 2255 motions had been filed in this Court, challenging career offender designations under Descamps v. United States, __U.S.__, 133 S.Ct. 2276 (2013). In particular, Chief Judge Blake noted that these petitioners have argued that one or more prior offenses of conviction no longer qualify as predicate offenses under Descamps. Id. at 1. Accordingly, she suspended the briefing in these cases pending the Fourth Circuit‘s decision in United States v. Foote, No. 13-7841. She also appended to the Standing Order a list of petitioners to whom the Standing Order applied. See ECF 59-1 in MC-00-308. Grant was included on that list. Id. Accordingly, no action was taken on Grant‘s Petition at that time.

         Foote was decided on April 27, 2015. United States v. Foote, 784 F.3d 931 (4th Cir. 2015), cert. denied, __U.S.__, 135 S.Ct. 2850 (2015). Soon after, on May 22, 2015, Mr. Grant was released from incarceration and entered supervised release. About a month later, the Supreme Court decided Johnson v. United States, U.S., 135 S.Ct. 2551 (2015).

         On November 12, 2015, Chief Judge Blake issued Standing Order 2015-06, titled In re: 28 U.S.C. §§ 2255 and 2241 Motions for Career Offender Sentencing Reductions and Vacatur of 18 U.S.C. § 942(c) Conviction, MC-00-308. Standing Order 2015-06 provided, in part, id. at 1: ''[T]he briefing schedule in all pending and anticipated cases involving Johnson challenges to career offender sentences on collateral review is suspended. The career offender cases will be held in abeyance pending the United States Court of Appeals for the Fourth Circuit's decision in In Re: Hubbard, No. 15-276.'' (Emphasis added). Hubbard was decided on June 8, 2016. See In re Hubbard, 825 F.3d 225 (4th Cir. 2016).

         On March 10, 2016, the FPD filed a second ''Motion for Appointment of Counsel, '' applicable to this case. ECF 465 (''Motion for Appointment''). The Motion for Appointment identified Grant as a defendant who ''may be eligible for relief under 28 U.S.C. § 2255 in light of Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015).'' Id. However, the Motion for Appointment made no reference to the FPD‘s earlier entry of appearance in this case.

         By Order of March 7, 2016, titled In Re: Motions for Relief Under 28 U.S.C. § 2255 Pursuant to Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), MC-16-143, Chief Judge Blake granted the Motion for Appointment. ECF 465. See also ECF 2 in MC-16-143. But, the FPD never filed a petition on behalf of Grant under § 2255 predicated on Johnson. See docket.

         On March 17, 2016, the Court received a report from Grant‘s federal probation officer, advising that Grant had been arrested on March 8, 2016, in Salisbury, Maryland, and that he was charged in Wicomico County with, inter alia, ''CDS: Possession with Intent: Narcotics''; ''CDS: Possession Marijuana, Marijuana Paraphernalia Possession/ Distribution''; and ''CDS: Possession Paraphernalia.'' ECF 466 (''Report''). The Report stated that Grant would be referred for alcohol and drug assessment and testing, but requested no further action. Id. I approved the Report by Order of March 17, 2016. Id.

         Then, on June 8, 2016, the Clerk docketed the FPD‘s ''Motion for Withdrawal of Counsel'' (the ''Motion to Withdraw''). ECF 472. The Motion to Withdraw referenced the FPD‘s Motion for Appointment pursuant to Johnson (ECF 465), but did not mention the earlier Petition filed by the FPD pursuant to Descamps and Royal ...


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