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Gary v. Kallis

United States District Court, D. Maryland

May 23, 2017

KEVIN GARY, Petitioner
v.
WARDEN S. KALLIS Respondent Related Crim No. ELH-08-86

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         On May 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.

         The 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.

         I. Factual Background

         Gary 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.

         According 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.

         On 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.

         More 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”).[1] 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 1476-1.

         As 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.

         However, 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 suspended.

         In a 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.”

         Finally, 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.

         II. Discussion

         A writ 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 ...


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