United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
a five-day trial, a jury convicted the pro se
Petitioner Dante Foster (“Petitioner” or
“Foster”) of one count of Possession of a Firearm
by a Felon, in violation of 18 U.S.C. § 922(g)(1), and
one count of Possession with Intent to Distribute Cocaine, in
violation of 21 U.S.C. § 841(a)(1). (Jury Verdict, ECF
No. 46); United States v. Foster, Case No. 13-4347,
565 Fed.App'x. 202 (4th Cir. 2014) (Mem). Judge Quarles
of this Court sentenced Foster to one-hundred and
seventy-four (174) months imprisonment. Foster, 556
Fed.App'x at 1. Foster subsequently appealed his
conviction to the United States Court of Appeals for the
Fourth Circuit, which affirmed this Court's judgement.
9, 2015, Petitioner filed a Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255. (ECF No. 99.)
On June 16, 2016, the Office of the Federal Public Defender
filed a Supplemental Motion on behalf of Petitioner. (ECF No.
106.) On June 19, 2017, Petitioner filed a Motion for Leave
to File a Second Supplemental Motion. (ECF No. 107.) The
parties' submissions have been reviewed, and no hearing
is necessary. See Local Rule 105.6 (D. Md. 2016).
For the reasons stated herein, Petitioner's Motion for
Leave to File a Second Supplemental Motion (ECF No. 107) is
GRANTED and Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 99) is
background facts of this case were fully set forth in two of
this Court's Memorandum Opinions on November 28, 2012 and
May 20, 2013. United States v. Foster, 2012 WL
5995442 (D. Md. Nov. 28, 2012); United States v.
Foster, 2013 WL 1975652 (D. Md. May 10, 2013). To
summarize, around December of 2011 a confidential informant
told Baltimore Police Department (“BPD”)
detectives that Foster was selling drugs at his brother's
home. Foster, 2012 WL 5995442 at *1. BPD detectives
then obtained a search warrant for the home and conducted
pre-raid surveillance. Id. During the surveillance,
detectives observed Foster leave the home in a car registered
to his name. Id. Two detectives followed him.
Id. When the detectives observed Foster change lanes
without using a signal, they stopped Foster's car.
Id. Upon approaching Foster's car, Detective
Mahan saw in plain view a baggie with suspected marijuana.
Id. The detectives arrested Foster. Id.
search of Foster incident to his arrest, the detectives found
currency and a digital scale. Id. In Foster's
car, the detectives found suspected marijuana and cocaine and
a Smith & Wesson 9mm semi-automatic handgun. Id.
at *1-2. The detectives also lawfully searched the home of
Foster's girlfriend, where they found ammunition, loaded
magazine holders, cartridge magazines, and cartridges.
Id. at *2. Upon interviewing Foster, he told the BPD
detailed information about recent cocaine transactions and
provided the detectives with a list of customers.
Id. On December 29, 2011, Petitioner was charged
with one count of Possession of a Firearm by a Felon, in
violation of 18 U.S.C. § 922(g)(1), and one count of
Possession with Intent to Distribute Cocaine, in violation of
21 U.S.C. § 841(a)(1).
6, 2012, Foster was indicted. Prior to trial, he filed three
motions to suppress related to the traffic stop, arrest, and
subsequent seizure of evidence from Foster's car.
Id. at *5. After a hearing, Judge Quarles denied all
three motions. Id. at *8. On November 26, 2012,
Petitioner's jury trial began. (ECF No. 82.) On the third
day of trial, Petitioner made an oral motion to proceed
pro se, which this Court granted. (ECF No. 38; ECF
No. 84 at 1-12). On November 29, 2012, the jury found Foster
guilty of both counts. (ECF No. 40); Foster, 2013 WL
1975652 at *1. Subsequently, Foster moved pro se to
appoint investigative and expert witnesses, for a detention
hearing, and to dismiss for lack of jurisdiction under
Federal Rule of Criminal Procedure 34. Id. The first
two motions were denied as moot. Id. at *2 n. 6.
Although Foster's third motion for lack of jurisdiction
was untimely, this Court addressed it on the merits.
Id. at *1. Foster argued that the stop and arrest
violated a Maryland law prohibiting local police officers
from making arrests outside of their jurisdiction.
Id. This Court found, however, that the BPD
detectives lawfully arrested Foster in Baltimore County under
the fresh pursuit doctrine. Id. at *1.
appealed to the Fourth Circuit. United States v.
Foster, 565 Fed.App'x. 202 (4th Cir. 2014) (Mem).
The sole issue raised on appeal was whether the district
court improperly used Foster's prior Maryland state court
conviction to enhance his criminal history category.
Id. The Fourth Circuit affirmed the district court,
holding that Foster did not meet his burden of showing that
the prior conviction was invalid. Id.
Court recognizes that Petitioner is pro se and has
accorded his pleadings liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C.
§ 2255, a prisoner in custody may seek to vacate, set
aside or correct his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States, (2) the court was without jurisdiction
to impose the sentence, (3) the sentence was in excess of the
maximum authorized by law, or (4) the sentence is otherwise
subject to a collateral attack. Hill v. United
States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C.
§ 2255). “[A]n error of law does not provide a
basis for collateral attack unless the claimed error
constituted ‘a fundamental defect which inherently
results in a complete miscarriage of justice.'”
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill, 368 U.S. at 428).
scope of a § 2255 collateral attack is far narrower than
an appeal, and a “‘collateral challenge may not
do service for an appeal.'” Foster v. Chatman,
___U.S. __, 136 S.Ct. 1737, 1758 (2016) (quoting
United States v. Frady, 456 U.S. 152, 165 (1982)).
Thus, procedural default will bar consideration under §
2255 of any matters that “could have been but were not
pursued on direct appeal, [unless] the movant show cause and
actual prejudice resulting from the errors of which he
complains.” United States v. Pettiford, 612
F.3d 270, 280 (4th Cir. 2010) (citing United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
Petitioner's Motion to Vacate (ECF No. 99) is
one-year statute of limitations applies to § 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 also
Whiteside v. United States, 775 F.3d 180, 183 (4th Cir.
conviction becomes final for the purpose of starting the
one-year limitations period when the opportunity to appeal
expires. See Clay v. United States, 537 U.S. 522,
524-25 (2003); United States v. Sosa, 364 F.3d 507,
509 (4th Cir. 2004). Foster's judgment of conviction was
affirmed on April 7, 2014. Therefore, his judgment of
conviction would have become final on or about July 7, 2014,
when the ninety day period for filing a petition for writ of
certiori with the Supreme Court expired. See Sup.
Ct. R. 13.1 (requiring petition for writ of certiori to be
filed within ninety days of the date of judgment from which
review is sought). The Government has not challenged the
timeliness of Petitioner's Motion to Vacate and this
Court accords his pleadings liberal construction in light of
his proceeding pro se in this matter. Accordingly,
this Court will address the issues raised and, for the sake
of argument, treat the motion as having been timely filed.
Petitioner's Motion to Amend and Supplement
Court also preliminarily addresses Petitioner's Motion
for Leave to File a Second Supplemental Motion to Vacate (ECF
No. 107) under Rule 15(d) of the Federal Rules of Civil
Procedure. “The Court may . . . permit a party to serve
a supplemental pleading . . . even though the original
pleading is defective in stating a claim or defense.”
Fed. R. Civ. Proc. 15(d). The United States Court of Appeals
for the Fourth Circuit has instructed that “the
standards used by a district court in ruling on a motion to
amend or on a motion to supplement are nearly
identical.” Franks v. Ross,313 F.3d 184, 198
n. 15 (4th. Cir. 2002). “In either situation, leave
should be freely granted, and should be denied only where
‘good reason exists ... such as prejudice to the
defendants.'” Id. (quoting Walker v.
United Parcel Serv.,240 F.3d 1268, 1278 (10th
Cir.2002)). In light of ...