United States District Court, D. Maryland
L. Hollander United States District Judge.
4, 2017, Kevin Gary, a self-represented federal prisoner
incarcerated at FCI-Hazelton Medical Complex in Bruceton
Mills, West Virginia, filed a Petition for Writ of Habeas
Corpus (“Second Petition”), pursuant to 28 U.S.C.
§2241. He alleges that he is illegally detained because
prior convictions were improperly used to enhance his federal
sentence. ECF 1 at 1. Gary relies on Mathis v. United
States, ___ U.S. ___, 136 S.Ct. 2243, 2251 (2016). In
Mathis, the Supreme Court applied the
“categorical approach” and determined Iowa's
burglary statute could not serve as a predicate violent
felony to enhance Mathis's sentence under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e). On the basis of Mathis, Gary argues that his
two prior convictions for possession with intent to
distribute cocaine and heroin were improperly used to enhance
his sentence. ECF 1 at 2.
threshold question presented here is whether this claim is
properly raised in a § 2241 petition or is, instead,
more properly construed under 28 U.S.C. § 2255. No
hearing is necessary to resolve the Petition.
was indicted on multiple charges on February 21, 2008. The
charges included conspiracy to participate in a racketeering
enterprise, in violation of 18 U.S.C. § 1962(d). ECF 1.
He was one of twenty-eight defendants. On January 9, 2009,
Gary entered a plea of guilty to the racketeering charge (ECF
467), pursuant to a Plea Agreement dated December 31, 2008.
ECF 468. The plea was entered under Fed. R. Crim. P.
11(c)(1)(C). Id. ¶ 9.
to the “Stipulated Facts” contained in the Plea
Agreement, Gary held a position of leadership in the Tree Top
Pirus Gang, a subset of the “Bloods.” See
generally Id. at 8-18. Wiretap evidence showed that
Gary, inter alia, facilitated drug transactions;
ordered his subordinates to commit acts of violence; and
organized the distribution of firearms. Id. at
12-17. Gary also stipulated to having sold narcotics
(id. at 14) and to having participated in a
gang-related murder. Id. at 15.
March 27, 2009, Judge William D. Quarles, Jr. sentenced Gary
to a term of imprisonment of 360 months, in accordance with
the terms of the Plea Agreement. ECF 511; ECF 513. The
following day, March 28, 2009, Gary noted an appeal to the
Fourth Circuit. ECF 512. On December 29, 2010, the Fourth
Circuit affirmed Gary's conviction and dismissed his
appeal as to his sentence. See United States v. Penix and
Gary, 406 Fed. App'x 744 (4th Cir. 2010) (per
curiam); see also ECF 1138. The mandate issued on
January 20, 2011. ECF 1137. Gary did not seek a writ of
certiorari to the Supreme Court.
than two and a half years later, on September 19, 2013, Gary
filed a “Motion to Vacate, Set Aside, or Correct
Sentence” (the “First Petition”), pursuant
to 28 U.S.C. § 2255. ECF 1359. In particular, Gary
argued that, in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011), Judge Quarles
should not have sentenced him as a career offender.
Id. at 4-5. The government filed an opposition. ECF
1372 (the “First Opposition”), along with three
exhibits. ECF 1372-1 through ECF 1372-3. Gary replied. ECF
1396 (the “Reply”). Then, on May 5, 2016, the Clerk
docketed Gary's “Motion Under 2255 In Light Of
Johnson v. United States.” ECF 1473 (the
“Supplemental Petition”). The Supplemental
Petition was based on Johnson v. United States, ___
U.S. ___, 135 S.Ct. 2551 (2015). ECF 1473. The government
subsequently filed another opposition (ECF 1476, the
“Second Opposition”), along with an exhibit. ECF
noted, in the First Petition, Gary relied on
Simmons, 649 F.3d 237. He argued that he was
improperly designated a career offender because of a prior
conviction for robbery in Maryland. ECF 1359 at 4-5 ¶
13-14; ECF 1372 at 3. Gary contended that his robbery
conviction in 2000, in the Circuit Court for Baltimore City,
did not qualify as a predicate conviction under § 4B1.2
of the Sentencing Guidelines. See ECF 1372 at 5.
in addition to Gary's robbery conviction in 2000, the
Presentence Report (“PSR, ” ECF 1487), reflected
that on July 10, 2001, Gary was convicted of possession with
intent to distribute cocaine, occurred on October 7, 2000.
ECF 1487, ¶¶ 47, 48. For that offense, he was
sentenced on August 13, 2001, to a period of ten years'
incarceration, of which eight years were suspended.
Id. ¶ 47. And, ¶¶ 49 and 50 of the
PSR reflected that Gary was convicted of possession with
intent to distribute heroin and conspiracy to distribute
heroin, with an offense date of November 4, 2000. On August
13, 2001, the Maryland court imposed a concurrent sentence of
ten years' imprisonment, of which eight years were
Memorandum (ECF 1491) and Order (ECF 1492) of August 17,
2016, I concluded that the First Petition was untimely.
See ECF 1491 at 5-7. Alternatively, I concluded that
it lacked merit. Id. at 7-14. Even assuming robbery
in Maryland does not constitute a “crime of
violence” under the Sentencing Guidelines, I observed
that the PSR (ECF 1487) reflected that Gary was also
convicted of two prior, separate, and qualifying felony drug
offenses. Thus, I said, in part, id. at 9:
“[B]ased on Gary's two prior and distinct felony
drug convictions, and without regard to his [State] robbery
conviction, Gary is a career offender.”
I noted that Gary entered his plea under Rule 11(c)(1)(C), by
which the parties jointly proposed a sentence of 360
months' incarceration. Id. at 13.
of habeas corpus pursuant to 28 U.S.C. § 2241 and a
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 are separate and distinct mechanisms
for obtaining post-conviction relief. A § 2241 petition
attacks the manner in which a sentence is executed.
See 28 U.S.C. § 2241(a). By contrast, a §
2255 motion challenges the validity of a conviction or
sentence. Se ...