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Holloway v. United States

United States District Court, D. Maryland

October 20, 2017

DAVID W. HOLLOWAY, Petitioner,


          Ellen Lipton Hollander United States District Judge.

         This Memorandum Opinion resolves a Motion to Vacate, Set Aside, or Correct Sentence, filed under 28 U.S.C. § 2255 by David Holloway, the self-represented petitioner. ECF 55 (''Petition''). The government opposes the Petition (ECF 58) and Petitioner has responded. ECF 64. Holloway has also filed a Motion for Appointment of Counsel (ECF 56) and a ''Motion for Disposition'' of his case. ECF 66.

         As discussed, infra, no hearing is necessary to resolve the motions. For the reasons that follow, I shall deny the Petition. ECF 55. I shall also deny the Motion for Disposition, as moot. ECF 66. In addition, I shall deny the Motion for Appointment of Counsel. ECF 56. A Certificate of Appealability shall not issue.

         I. Factual Background

         Holloway was indicted in December 2009. ECF 5. The case was assigned to Judge William D. Quarles, Jr.[1] On February 25, 2010, Holloway entered a plea of guilty to Counts One and Two of the Indictment, charging him with bank robbery, in violation of 18 U.S.C. § 2113 (Count One), and possessing, using, and carrying a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Two). ECF 28; ECF 29 (Plea Agreement). The Plea Agreement stated, in part, ECF 29 at 4, ¶ 6: ''The United States Attorney‘s Office will argue that the Defendant is a Career Offender pursuant to U.S.S.G. § 4B1.1 and therefore his Offense Level is 34, Criminal History VI.''

         According to ¶ 23 of the Presentence Report (''PSR, '' ECF 67), [2] Holloway qualified as a Career Offender under U.S.S.G. § 4B1.4. Id. ¶23. That determination was based on the underlying offense and the fact that Holloway had two prior and distinct felony drug convictions, as well as a conviction for robbery with a deadly weapon. Id.; see also Id. ¶¶ 33, 34, 35.[3]

         At the sentencing held on May 17, 2011 (ECF 48), Judge Quarles found that Holloway was a Career Offender. See ECF 50 (Statement of Reasons) at 4. Holloway‘s final adjusted offense level for Count One was 31 and his criminal history category was VI, resulting in an advisory sentencing guidelines range of 188 to 235 months‘ imprisonment for that count. See PSR ¶ 53; ECF 50 at 1. The firearm count (Count Two) required a mandatory minimum term of imprisonment of 84 months, consecutive. Therefore, the total guidelines range called for a period of imprisonment ranging between 272 and 319 months.

         Judge Quarles sentenced Holloway to 204 months of incarceration as to Count One, and to a consecutive term of 84 months with respect to Count Two, for a total sentence of 288 months. ECF 49 (Judgment). Holloway did not note an appeal to the Fourth Circuit. See Docket.

         Several years later, on July 5, 2016, Holloway filed his Petition under 28 U.S.C. § 2255. ECF 55. It was signed on June 24, 2016. Id. at 2. In light of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), Petitioner argues that he was improperly designated as a Career Offender because his predicate convictions ''no longer qualify as a 'crimes of violence‘ under U.S.G. 4B1.2.'' ECF 64 at 3.

         II. Discussion


         Section 2255(a) of Title 28 of the United States Code provides relief to prisoners in federal custody. Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may ''move the court which imposed the sentence to vacate, set aside or correct the sentence, '' but only on certain grounds: ''that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....'' See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).

         Collateral attack is not a substitute for direct appeal; failure to raise certain issues on direct appeal may render them procedurally defaulted on post-conviction review. United States v. Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). In other words, as a general rule, a petitioner who fails to raise a claim on direct appeal is barred from raising the claim on collateral review. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51 (2006). However, this bar generally does not apply to claims pertaining to ineffective assistance of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503-04 (2003).

         The scope of review of non-constitutional error is more limited than that of constitutional error. A non-constitutional error provides a basis for collateral attack only when it involves ''a fundamental defect which inherently results in a complete miscarriage of justice'' or is ''inconsistent with the rudimentary demands of fair ...

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