United States District Court, D. Maryland
DAVID W. HOLLOWAY, Petitioner,
UNITED STATES OF AMERICA Respondent.
Lipton Hollander United States District Judge.
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.
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.
was indicted in December 2009. ECF 5. The case was assigned
to Judge William D. Quarles, Jr. 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
to ¶ 23 of the Presentence Report (''PSR,
'' ECF 67),  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.
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
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.
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.
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).
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).
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