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 According to ¶ 23 of the Presentence 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 319 months.
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
procedure.'' United States v. Mikalajunas,
186 F.3d 490, 496 (4th Cir. 1999); see Newbold, 791 F.3d at
28 U.S.C. § 2255(b), the post-conviction court must hold
a hearing ''[u]nless the motion and the files and
records conclusively show that the prisoner is entitled to no
relief....'' See, e.g., United States v.
White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have
determined that a hearing is not necessary where
''the motion...fail[s] to allege sufficient facts or
circumstances upon which the elements of constitutionally
deficient performance might properly be found [or] where the
defendant has failed to present any affidavits or other
evidentiary support for the naked assertions contained in his
motion.'' United States v. Taylor, 139 F.3d
924, 933 (D.C. Cir. 1998) (internal quotation marks and
citation omitted); accord United States v. McGill,
11 F.3d 223, 225-26 (1st Cir. 1993). On the other hand, a
hearing is generally ''required when a movant
presents a colorable Sixth Amendment claim showing disputed
material facts and a credibility determination is necessary
to resolve this issue.'' United States v.
Robertson, 219 Fed. App‘x. 286, 286 (4th Cir.
2007) (per curiam); see also United States v. Ray,
547 Fed. App‘x. 343, 345 (4th Cir. 2013) (per curiam).
reviewing the Petition, the Court is mindful that a
self-represented litigant is generally ''held to a
‗less stringent standard[ ]‘ than is a lawyer,
and the Court must liberally construe his claims, no matter
how ‗inartfully‘ pled.'' Morrison v.
United States, RDB-12-3607, 2014 WL 979201, at *2 (D.
Md. Mar. 12, 2014) (internal citations omitted); see
Erickson v. Pardus,551 U.S. 89, 94 (2007); Haines
v. Kerner,404 U.S. 519, 520 (1972) (stating that claims
of self-represented litigants are held ''to less
stringent standards than formal pleadings drafted by
lawyers''); Bala v. Commonwealth of Va. Dep't
of Conservation & ...