United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Troy Wilkens (“Petitioner” or
“Wilkens”) pled guilty before this Court to one
count of Possession with the Intent to Distribute Cocaine, in
violation of 21 U.S.C. § 841(a)(1). J., p. 1, ECF No.
43. At sentencing, this Court adopted the factual findings
and advisory guideline applications in the Presentence Report
(ECF No. 38) and found that Wilkens was a “career
offender” under Section 4B1.1 of the United States
Sentencing Guidelines. His total offense level was 30, and
his criminal history category was VI. Statement of Reasons
[Sealed], p. 1, ECF No. 44. Accordingly, his advisory
sentencing guideline range was 168 to 210 months
imprisonment. Id. However, based on the factors set
forth in 18 U.S.C. § 3553(a), this Court ultimately
sentenced Wilkens to 60 months imprisonment and four years
supervised release, a sentence well below the career offender
guideline range. Id. at 3.
appealed his sentence to the United States Court of Appeals
for the Fourth Circuit, but that appeal was subsequently
dismissed upon his own motion. See Order, ECF No.
49. He further moved for a reduced sentence under 18 U.S.C.
§ 3582(c)(2) based on retroactive application of
Amendment 782 to the United States Sentencing Guidelines,
which lowered the offense levels for drug offenses. This
Court denied that Motion via Memorandum Order dated February
11, 2016 (ECF No. 65) because the “career
offender” guideline range under U.S.S.G. 4B1.1, his
applicable guideline range, was unaffected by Amendment 782.
Wilkens likewise appealed that ruling, but that appeal was
again dismissed upon his motion. See Order, ECF No.
March 25, 2016, Wilkens was released from
custody. However, still pending before this Court
is Wilkens' Motion to Correct Sentence Under 28 U.S.C.
§ 2255 (ECF No. 51), in which he argues that he is no
longer a career offender under Section 4B1.1 because one of
his predicate convictions, Maryland manslaughter, no longer
qualifies as a “crime of violence” in light of
the United States Supreme Court's decision in
Descamps v. United States, 133 S.Ct. 2276 (2013).
The parties' submissions have been reviewed, and no
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated herein, Wilkens' Motion to
Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 51) is
Wilkens' Motion to Correct Sentence is Untimely
one-year statute of limitations applies to Section 2255
petitions. 28 U.S.C. § 2255(f). The limitations period
runs from the latest of: (1) the date on which the judgment
of conviction becomes final; (2) the date on which the
impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion
by such governmental action; (3) the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or (4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence. Id.; see Whiteside v.
United States, 775 F.3d 180, 183 (4th Cir. 2014).
Court entered Judgment against Wilkens (ECF No. 43) on March
7, 2013. As noted supra, Petitioner subsequently
appealed this Court's Judgment to the United States Court
of Appeals for the Fourth Circuit. See Notice of
Appeal, ECF No. 45. The Fourth Circuit granted Wilkens'
motion to voluntarily dismiss that appeal via Order dated May
24, 2013 (ECF No. 49). A formal mandate issued that same day
(ECF No. 50). Wilkens filed the pending Section 2255 Motion
to Correct Sentence on June 15, 2014, more than one year
after this Court's entry of Judgment and more than one
year after the Fourth Circuit's dismissal of his appeal.
Although Wilkens did file the pending motion within one year
of the United States Supreme Court's decision in
Descamps v. United States, 133 S.Ct. 2276 (2013),
the Supreme Court has not held that its decision in
Descamps applies retroactively to cases on
collateral review, nor is this Court aware of any subsequent
circuit court opinion so holding. See Martin v. United
States, No. PJM 02-178, 2015 WL 3780444, at *3 (D. Md.
June 9, 2015); Baldwin v. United States, No.
JFM-13-2006, 2013 WL 6183020, at *2 (D. Md. Nov. 25, 2013);
Randolph v. United States, No. CCB-13-1227, 2013 WL
5960881, at *1 (D. Md. Nov. 6, 2013); see also United
States v. Owens, No. 3:05CR264-HEH-1, 2016 WL 1562917,
at *2 (E.D. Va. 2016) (explaining that Descamps does
not recognize a new right or apply retroactively on
collateral review). Therefore, the pending motion is untimely
under 28 U.S.C. § 2255(f).
Wilkens was Sentenced Well Below the “Career
Offender” Guideline Range
Wilkens' motion were timely, it would still be denied
because Wilkens was sentenced well below the “career
offender” guideline range. Wilkens did not challenge
his “career offender” designation on direct
appeal. The United States Court of Appeals for the Fourth
Circuit has made clear that issues not raised at trial or on
direct appeal are deemed procedurally defaulted and cannot be
considered in a subsequent Section 2255 motion unless a
movant can show either that 1) “cause and actual
prejudice” resulted from the errors asserted, or 2)
that an “imminent miscarriage of justice” would
result from a denial of the collateral attack. See United
States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.
1999). Cause “must turn on something external to the
defense, such as the novelty of the claim or a denial of
effective assistance of counsel.” Id. at 493.
Demonstrating a potential “miscarriage of
justice” requires a showing of movant's
“actual innocence by clear and convincing
evidence.” Id. (citing Murray v.
Carrier, 477 U.S. 478, 496 (1986)). Although Wilkens was
designated as a ‘career offender' at sentencing, he
can neither demonstrate prejudice nor miscarriage of justice
because his actual sentence was significantly below the
career offender advisory guideline range. His sentencing
guideline range was 168 to 210 months imprisonment. Statement
of Reasons [Sealed], p. 1, ECF No. 44. However, this Court
ultimately sentenced Wilkens to 60 months imprisonment, based
on the factors set forth in 18 U.S.C. § 3553(a).
Id. at 3.
where a Section 2255 motion is based on an alleged sentencing
miscalculation, relief should only be afforded where
“the sentence was in excess of the maximum authorized
by law” and therefore constitutes a “miscarriage
of justice.” 28 U.S.C. § 2255(a); see United
States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir.
1999). The Fourth Circuit has made clear in United States
v. Foote, 784 F.3d 931, 937 (4th Cir. 2015) that where a
sentence is “‘within the statutory limits'
and the proceedings were not ‘infected with any error
of fact or law of the fundamental character, ' [a] claim
is not appropriate for § 2255 review” (citing
United States v. Addonizio, 442 U.S. 178, 186
(1979)). In this case, Wilkens' sentence of 60 months
imprisonment was well within statutory limits, as 21 U.S.C.
§ 841(b)(1)(c) provides for a maximum sentence of 20
years imprisonment. Furthermore, as noted supra,
Wilkens has now served his entire 60 month prison sentence
and has already been released from incarceration. Therefore,
to the extent he has sought a reduction of his 60 month
sentence, that request is moot.
reasons stated above, Petitioner Troy Wilkens' Motion to
Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 51) is
to Rule 11(a) of the Rules Governing Proceedings under 28
U.S.C. § 2255, the court is required to issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a
“jurisdictional prerequisite” to an appeal from
the court's earlier order. United States v.
Hadden, 475 F.3d 652, 659 (4th Cir. 2007). A certificate
of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner's motion on its merits, a petitioner
satisfies this standard by demonstrating that reasonable
jurists would find the court's assessment of the
constitutional claims debatable or wrong. See Slack ...