United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
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). 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.
discussed, infra, no hearing is necessary to resolve
the Petition. For the reasons that follow, I shall dismiss
the Petition as untimely filed.
Factual and Procedural Background
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.
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. 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.
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
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.
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.
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.
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.
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).
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).
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.
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
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.
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 ...