United States District Court, D. Maryland
Lipton Hollander United States District Judge
Memorandum Opinion resolves a Motion to Vacate, Set Aside, or
Correct Sentence, filed under 28 U.S.C. § 2255 by
William Wright, the self-represented petitioner. ECF 32
("Petition"). As discussed, infra, no
hearing is necessary to resolve the matter.
was indicted in October 2006. ECF 1. The case was assigned to
Judge William D. Quarles, Jr. On December 19, 2006, Wright
entered a plea of guilty to the charge of being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). See Docket. Prior to sentencing, the United
States Probation Office completed a presentence report
("PSR"). ECF 39. According to ¶ 21 of the PSR,
Wright qualified as an Armed Career Criminal, pursuant to
U.S.S.G. § 4B1.4. See also the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e).
That determination was based on the fact that Wright had
three prior and distinct serious drug convictions. See
also ECF 39, ¶ 45. Based on this finding,
Wright‘s final adjusted offense level was 30 and his
criminal history category was VI, resulting in an adjusted
sentencing guideline range of 180 to 210 months. ECF 39,
¶ 46; U.S.S.G. § 5G1.1.
March 7, 2007, Judge Quarles sentenced Wright to 180 months
incarceration, the mandatory minimum sentence pursuant to the
ACCA, followed by five years of supervised release.
See ECF 18. Judgment was entered on March 8, 2007.
Id. Wright did not note an appeal to the Fourth
Circuit. See Docket.
eight years later, on August 3, 2015, Wright filed a motion
to vacate under 28 U.S.C. § 2255. ECF 32. In light of
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015), Wright contends that he was improperly designated as
an Armed Career Criminal. ECF 32 at 4; id. at 15. In
particular, he complains that a charge of "possession of
cocaine" unconstitutionally served as the predicate
offense for his classification as an Armed Career Criminal.
Id. at 15. Wright also asserts a claim of
ineffective assistance of counsel. In this regard, he
contends that his attorney failed to file an appeal despite
being asked repeatedly to do so. Further, Wright maintains
that his attorney failed to object to the erroneous
classification of Wright as an Armed Career Criminal.
Id. at 4.
August 7, 2015, the Court directed the government to respond
to Wright‘s Petition. ECF 33. Subsequently, on October
22, 2015, Wright‘s Petition was stayed, pursuant to
Standing Order No. 2015-01. ECF 34. On September 22, 2016,
the government submitted a response in opposition to the
Petition. ECF 37 ("Opposition"). In its Opposition,
the government asked the Court to lift the stay and deny
Wright‘s Petition. Id. at 2. The government
argued that the ineffective assistance of counsel claims are
time-barred and that the Johnson claim is not
meritorious. ECF 37.
Petitioner was granted 21 days from the date of the
government‘s response to file a reply (see ECF
33), he did not do so. However, on March 24, 2017, Wright
filed a "Motion for Judicial Opinion and Appointment of
Counsel." ECF 38 ("Motion to Appoint
reasons that follow, I shall lift the stay, deny the Motion
to Appoint Counsel (ECF 38), and deny the Petition. ECF 32. A
certificate of appealability shall not issue.
2255(a) of Title 28 of the United States Code provides relief
to prisoners in federal custody. Pursuant to 28 U.S.C.
§ 2255(a), a prisoner in federal custody may
"move the court which imposed the sentence to vacate,
set aside or correct the sentence, " but only on certain
grounds: "that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack...."
See also United States v. Newbold, 791 F.3d
455, 459 (4th Cir. 2015).
attack is not a substitute for direct appeal; failure to
raise certain issues on direct appeal may render them
procedurally defaulted on post-conviction review. United
States v. Frady, 456 U.S. 152, 165 (1982);
accord Bousely v. United States, 523 U.S.
614, 630 (1998). In other words, as a general rule, a
petitioner who fails to raise a claim on direct appeal is
barred from raising the claim on collateral review.
Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51
(2006). However, this bar generally does not apply to claims
pertaining to ineffective assistance of counsel. See,
e.g., Massaro v. United States, 538 U.S. 500, 503-04
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 Newbold, 791 F.3d at 459.
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 punishment that the law cannot impose upon
him." Newbold, 791 F.3d at 460 (citation omitted).
28 U.S.C. § 2255(b), the post-conviction court must hold
a hearing "[u]nless the motion and the files and records
conclusively show that the prisoner is entitled to no
relief...." See, e.g., United States v.
White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have
determined that a hearing is not necessary where "the
motion...fail[s] to allege sufficient facts or circumstances
upon which the elements of constitutionally deficient
performance might properly be found [or] where the defendant
has failed to present any affidavits or other evidentiary
support for the naked assertions contained in his
motion." United States v. Taylor, 139 F.3d 924,
933 (D.C. Cir. 1998) (internal quotation marks and citation
omitted); accord United States v. McGill,
11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a
hearing is generally "required when a movant presents a
colorable Sixth Amendment claim showing disputed material
facts and a credibility determination is necessary to resolve
this issue." United States v. Robertson, 219
Fed. App‘x. 286, 286 (4th Cir. 2007) (per curiam);
see also United States v. Ray, 547 Fed.
App‘x. 343, 345 (4th Cir. 2013) (per curiam).
reviewing the Petition, the Court is mindful that a
self-represented litigant is generally "held to a
'less stringent standard[ ]‘ than is a lawyer, and
the Court must liberally construe his claims, no matter how
'inartfully‘ pled." Morrison v. United
States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar.
12, 2014) (internal citations omitted); seeErickson v. Pardus,551 U.S. 89, 94 (2007);
Haines v. Kerner,404 U.S. 519, 520 (1972) (stating
that claims of self-represented litigants are held "to
less stringent standards than formal pleadings drafted by
lawyers"); Bala v. Commonwealth of Va. Dep't of
Conservation & Recreation,532 Fed.Appx. 332, 334