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Burnett v. United States

United States District Court, D. Maryland

July 13, 2017

RUSSELL GLENN BURNETT, Petitioner,
v.
UNITED STATES OF AMERICA. Respondent. Criminal Action No. ELH-09-573

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge.

         This 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 60.[1]

         No hearing is necessary to resolve the Petition. For the reasons set forth below, I shall deny the Petition.

         I. Factual Background

         Burnett was indicted in November 2009 and the case was assigned to Judge William D. Quarles, Jr. ECF 1.[2] 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.

         Prior to sentencing, the United States Probation Office completed a presentence report. A revised presentence report was submitted on June 21, 2010 ("PSR").[3] 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.

         Sentencing 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 Fourth Circuit.

         Nearly 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 caution". Id.

         The 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.

         By 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.[4]

         As 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.

         In his 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 2-6.

         II. ...


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