United States District Court, D. Maryland
FLETCHER DORSETT, Petitioner.
UNITED STATES OF AMERICA, Respondent. Crim. No. GLR-07-0445
MEMORANDUM OPINION AND ORDER
L. Russell, III United States District Judge
before the Court is Petitioner Fletcher Dorsett's Motion
to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 (ECF No. 46, GLR-07-0445). Respondent
United States of America (the “Government”)
opposes the Motion (ECF No. 51). Dorsett has not filed a
Reply. No hearing is necessary. See 28 U.S.C. §
2255 (b). For the reasons outlined below, the Court will deny
August 8, 2008, the Government and Dorsett entered into a
plea agreement in which Dorsett pleaded guilty to federal
bank robbery in violation of 18 U.S.C. § 2113(a) &
(f). Notably, Dorsett waived any right to appeal in the event
that the Court determined that he was not a career offender
(see U.S.S.G. § 4B1.1). At his sentencing, the
Court determined that Dorsett was not a career offender and
that his adjusted offense level was 21 and his criminal
history category was VI. Dorsett's guideline range was
between 77 and 96 months. The Court sentenced Dorsett to 96
months. (See ECF No. 36). Dorsett did not appeal his
conviction or sentence.
29, 2016, Dorsett filed the pending Motion, alleging that the
Court miscalculated his prior convictions for the purposes of
his criminal history. (ECF No. 46, GLR-07-0445). Dorsett
raises three principal arguments. First, he asserts that his
attorney was constitutionally ineffective by not challenging
the calculation of his convictions to his criminal history.
Second, he contends that prior convictions comprised of
“relevant conduct” under the United States
Sentencing Guidelines (the “Sentencing
Guidelines”) § 1B1.3 and, therefore, are not
defined as prior sentences. Third, Dorsett argues that his
prior convictions should not have qualified as “prior
sentences” under §§ 4A1.1, 4A1.2 of the
Government correctly asserts that a defendant who fails to
raise arguments on direct appeal may only collaterally assert
those arguments after a showing of (1) “cause and
actual prejudice, ” or (2) “actual
innocence.” United States v. Mikalajunas, 186
F.3d 490, 493 (4th Cir. 1999). Because Dorsett has not shown
either of the foregoing elements, his second and third
grounds for seeking relief are without merit.
has procedurally defaulted on his ability to attack his
underlying sentence. Hence, he cannot show “cause and
actual prejudice.” Dorsett failed to, and agreed not
to, appeal his conviction or sentence. A plea agreement that
prevents a defendant from appealing is not sufficient cause
for his procedural default. See United States v.
Jones, 1995 WL 321263, at *1 (4th Cir. 1995) (4th Cir.
May 30, 1995) (unpublished table decision). “A knowing
and voluntary waiver of the right to appeal is valid and
enforceable. Such waivers are designed to preserve the
finality of judgments and sentences imposed pursuant to
guilty pleas.” Id. (internal quotation
short, Dorsett cannot circumvent a bargain for waiver through
collateral proceedings. See United States v. Linder,
552 F.3d 391, 392 (4th Cir. 2009). Further, “actual
innocence” cannot be established because “actual
innocence applies in non-capital sentencing only in the
context of eligibility for application of a career offender
or other habitual offender guideline provision.”
Mikalajunas, 186 F.3d at 495. The Court never found
Dorsett to be a career of habitual offender.
now, to Dorsett's ineffective assistance of counsel
claim, Dorsett must show both that counsel's performance
was deficient and that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668,
688, 694 (1984). To demonstrate deficient performance, a
petitioner must overcome a “strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. When determining whether counsel's conduct was
deficient “[j]udicial scrutiny of counsel's
performance must be highly deferential.” Id.
To demonstrate prejudice, a petitioner must “show there
is a reasonable probability that but for counsel's
unprofessional errors, the results of the proceeding would
have been different.” Id. at 694. In the
context of plea bargaining, the prejudice standard requires
proof of “a reasonable probability that, but for
counsel's errors, he would not have plead guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
claim that his counsel failed to argue that his burglary and
theft convictions were relevant conduct, and did not
constitute prior sentences for the purpose of calculating his
criminal history points and his guideline range, is
completely without merit. Section 1B of the Sentencing
Guidelines defines relevant conduct. Dorsett does not, and
cannot, explain how his theft and burglary convictions, which
occurred on distinct dates between 1995 and 2007,
“occurred during” his bank robbery on May 21,
2007. Further, Dorsett fails to present any circumstance
whereby the bank robbery was related to a “common
scheme or plan” pursuant to § 1B1.3(a)(2) of the
final argument-that several theft and burglary convictions
should not constitute prior sentences-is also baseless.
Section 4A1.1 of the Sentencing Guidelines identifies when
and how prior sentences are not counted or are counted under
certain circumstances or conditions. Dorsett has failed to
meet his burden in demonstrating an exception to why these
previous sentences should not be counted. All of the theft
and burglary convictions occurred on different dates, were
separated by intervening arrests, and had separate
prosecutions. The Court concludes, therefore, that
Dorsett's final argument is without merit.
final matter, the Court must to determine whether to issue a
certificate of appealability. See Rule 11(a) of the
Rules Governing Proceedings under 28 U.S.C. § 2255. A
certificate of appealability is a jurisdictional prerequisite
to an appeal from the court's earlier order. United
States v. Hadden, 475, F.3d 652, 659 (4th Cir. 2007). A
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a motion is denied on a procedural ground, a
certificate of appealability will not issue unless the
petitioner can demonstrate both “(1) that jurists of
reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right; and (2)
that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001).
Dorsett does not satisfy this standard. As a result, a
certificate of appealability will not issue.
foregoing reasons, Dorsett's Motion (ECF No. 46,
GLR-07-0445) is DENIED. A certificate of appealability shall
NOT ISSUE. The Clerk is DIRECTED to CLOSE this case and mail
of copy of this ...