United States District Court, D. Maryland
Lipton Hollander United States District Judge.
Memorandum resolves a Motion to Vacate, Set Aside, or Correct
Sentence, filed by Russell Burnett, the self-represented
petitioner, on June 15, 2016, under 28 U.S.C. § 2255.
ECF 45. A supplement was filed on September 8, 2016 (ECF 49)
(collectively, the "Petition"). The government
responded in opposition to the Petition on January 17, 2017.
ECF 57 ("Opposition"). Burnett replied on February
1, 2017. ECF 59 ("Reply"). The Court also received
a second reply from petitioner on the same day. ECF
hearing is necessary to resolve the Petition. For the reasons
set forth below, I shall deny the Petition.
was indicted in November 2009 and the case was assigned to
Judge William D. Quarles, Jr. ECF 1. On April 16, 2010, pursuant
to Fed. R. Crim. P. 11(c)(1)(C), Burnett entered a plea of
guilty to a charge of "Production of Child
Pornography", in violation of 18 U.S.C. § 2251(a).
ECF 24 (Plea Agreement). The parties stipulated to a sentence
of 180 months imprisonment (id at 5), which
corresponded to the mandatory minimum term of imprisonment
required by statute. See 18 U.S.C. § 2251(e);
see also ECF 24, ¶ 3.
to sentencing, the United States Probation Office completed a
presentence report. A revised presentence report was
submitted on June 21, 2010 ("PSR"). According to
¶ 45 of the PSR, Burnett had a final offense level of 35
and a criminal history category of III, resulting in an
advisory sentencing guidelines range of 210 to 262 months of
imprisonment; see ECF 24, ¶ 5(b); ECF 31
("Statement of Reasons") at 1.
was held on July 7, 2010. ECF 29. Consistent with the terms
of the "C" plea, Judge Quarles sentenced Burnett to
the mandatory minimum term of 180 months' imprisonment.
ECF 30 ("Judgment") at 2. As noted, that sentence
was well below the advisory sentencing guidelines range.
Judge Quarles also placed Burnett on lifetime supervised
release. See Id. at 3. Judgment was entered on July
9, 2010 (ECF 30), and Burnett did not note an appeal to the
six year later, on June 15, 2016, Burnett filed the Petition.
ECF 45. By Order of June 21, 2016, I informed Burnett that
the Court could find no cognizable claim in his Petition and
that he would have to provide a supplement if he intended to
pursue relief. ECF 46. Accordingly, I directed the Clerk to
send a "§ 2255 packet" to Burnett, and
provided him with 28 days to return the supplement.
Id. Thereafter, in an Order dated August 15, 2016, I
observed that the Court had not received Burnett's
supplement. ECF 47. But, I granted Burnett an additional 21
days in which to supplement, "out of an abundance of
Court received Burnett's supplement on September 8, 2016.
ECF 49. Burnett provides three grounds for relief in the
Petition. ECF 49 at 5. First, Burnett states: "The
government prosecutor used a false victim impact statement
and testified to the Judge saying that I was the one
responsable [sic] for it." Id. Second, Burnett
claims: "When the victim impact statement was read
against me, my public defender never raised any objections to
it knowing I had nothing to do with it." Id.
Third, Burnett asserts: "The Judge was biased against me
. . . because of the false statement used against me, the
Judge made rude remarks towards me." Id.
Order of September 30, 2016, I directed the government to
respond to Burnett's Petition within 60 days. ECF 50. On
December 5, 2016, the government requested a 60 day extension
in which to respond to the Petition. ECF 52. I granted the
government's request. ECF 53.
noted, the government filed its Opposition on January 17,
2017. ECF 57. In its Opposition, the government argues that
the Petition was untimely filed and that there are no grounds
for equitable tolling. Id. at 4-6. In the
alternative, the government contends that Burnett's
contentions lack merit. Id. at 6-8.
Reply, Burnett attributes his delay in filing the Petition to
the fact that he was in state custody until 2015 and
"had no access to federal laws or cases . . . ."
ECF 59 at 1. Moreover, Burnett disputes the government's
arguments as to the merits of his claims. Id. at