United States District Court, D. Maryland
L. Hollander United States District Judge.
22, 2017, Robert Stewart, a self-represented federal prisoner
incarcerated at FCI-Gilmer in Glenville, West Virginia, filed
a second Motion to Vacate, Set Aside or Correct Sentence,
pursuant to 28 U.S.C. § 2255. ECF 53 (the
“Petition”). He alleges that he is illegally
detained because prior convictions were improperly used to
enhance his federal sentence. ECF 53 at 4, 14. Further, as
Stewart argued in an earlier petition, he contends that his
mandatory senence “conflicts with the mandate of 18
U.S.C. § 3553(a) to impose a sentence that is
„sufficient but not greater than necessary.'”
ECF 53 at 2.
relies on cases that were not previously available to him.
Id. at 10. They include, inter alia,
Mathis v. United States, ___ U.S.___, 136 S.Ct.
2243, 2251 (2016). In Mathis, the Supreme Court
applied the “categorical approach” and determined
that 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,
Stewart argues that two of his prior Maryland convictions,
one for possession with intent to distribute cocaine and the
other for conspiracy to distribute cocaine, were improperly
used to enhance his sentence as an Armed Career Criminal and
as a Career Offender under U.S.S.G. § 4B1.1. ECF 53 at
4, 15, 16.
reasons that follow, I shall deny the Petition.
federal grand jury indicted Stewart on May 23, 2013, on a
charge of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g). ECF 1. On November 5,
2013, Stewart entered a plea of guilty pursuant to a written
plea agreement. ECF 20; ECF 21 (Plea Agreement). Sentencing
was held on March 13, 2014. See ECF 26. Because
Stewart had three prior qualifying convictions for serious
drug offenses, he was deemed an Armed Career Criminal.
Therefore, I imposed the mandatory minimum term of fifteen
years' imprisonment, pursuant to the ACCA, 18 U.S.C.
§ 924(e). See ECF 27 (Judgment); ECF 28
(Statement of Reasons).
March 14, 2014, Stewart noted an appeal to the United States
Court of Appeals for the Fourth Circuit. ECF 29. His
conviction and sentence were affirmed on October 24, 2014.
See United States v. Stewart, 585 Fed. App'x 106
(4th Cir. Oct. 24, 2014) (per curiam); see also ECF
42 (Opinion and Judgment of the Fourth Circuit); ECF 43
(Mandate). Stewart's petition for writ of certiorari to
the United States Supreme Court was denied on February 23,
2015. Stewart v. United States, ___ U.S.___, 135
S.Ct. 1476 (2015).
filed his first Motion to Vacate, pursuant to 42 U.S.C.
§2255, on September 10, 2015. ECF 44 (“First
Petition”). He argued, inter alia, that two of
his prior Maryland drug convictions were improperly
considered as ACCA predicates. ECF 44 at 4; ECF 44-1 at 5. In
particular, Stewart complained that the Court relied on prior
convictions that do “not qualify as a „serious
drug offense, ' because movant received a punishment of
less than one year of imprisonment.” ECF 44 at 4;
id. at 7. He also insisted that “his previous
drug convictions do not qualify as serious or violent by any
definition of the ACCA's predicate.” ECF 44-1 at 5.
In addition, Stewart claimed that he received ineffective
assistance of counsel because his attorney did “not
challeng[e] the ACCA enhancement sufficiently; nor did
counsel anticipate adequately the change in law....”
ECF 44 at 4-5. The government responded at ECF 50. I denied
the First Petition by Memorandum (ECF 51) and Order (ECF 52)
of March 24, 2016.
now argues that, due to changes in the law, which occurred
subsequent to the filing of his First Petition, the
underlying Maryland convictions used to enhance his federal
sentence no longer qualify as predicates for enhancement.
Therefore, he claims that he is entitled to resentencing. The
government has not been asked to respond.
2255(a) of Title 28 of the United States Code, under which
Stewart filed this Petition, provides relief to a prisoner in
federal custody only on specific grounds: that the sentence
was imposed in violation of the Constitution or laws of the
United States; that the court was without jurisdiction to
impose such a sentence; that the sentence was in excess of
the maximum authorized by law; or that the sentence is
otherwise subject to collateral attack.
scope of review of non-constitutional error is more limited
than that of constitutional error. A non-constitutional error
provides a basis for collateral attack only when it involves
““a fundamental defect which inherently results
in a complete miscarriage of justice”” or is
“inconsistent with the rudimentary demands of fair
procedure.” United States v. Mikalajunas, 186
F.3d 490, 496 (4th Cir. 1999); see United States v.
Newbold, 791 F.3d 455, 459 (4th Cir. 2015).
import here, “a mistaken career offender designation is
not cognizable on collateral review.” Newbold,
791 F.3d at 459 (citing United States v. Foote, 784
F.3d 931, 932-33 (4th Cir. 2015)). In contrast, a defendant
may challenge on collateral review an alleged erroneous
determination that he qualifies as an armed career criminal
and has thus “„received a ...