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Stewart v. United States

United States District Court, D. Maryland

May 31, 2017

ROBERT STEWART, Petitioner
v.
UNITED STATES OF AMERICA, Respondent Civil No. ELH-17-1408

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         On May 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.[1]

         Stewart 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.

         For the reasons that follow, I shall deny the Petition.

         I. Factual Background

         A 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).

         On 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).

         Stewart 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.

         Stewart 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.

         II. Discussion

         A.

         Section 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.

         The 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).

         Of 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 ...


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