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Foster v. United States

United States District Court, D. Maryland

September 27, 2017

DANTE FOSTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. Action No. RDB-12-0319

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Following 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[1] 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. Id.

         On July 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 DENIED.

         BACKGROUND

         The 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.

         Upon a 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).

         On June 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.[2] Id. at *1.

         Foster 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.

         STANDARD OF REVIEW

         This 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).

         The 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)).

         ANALYSIS

         I. Petitioner's Motion to Vacate (ECF No. 99) is timely

         A 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. 2014).

         A 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.

         II. Petitioner's Motion to Amend and Supplement

         This 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 ...


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