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Williams v. United States

United States District Court, D. Maryland

November 27, 2017

MARCO A. WILLIAMS
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution are the motion to vacate under 28 U.S.C. § 2255 filed by Petitioner Marco Williams (“Petitioner”), (ECF No. 109), and the motion for leave to file a surreply filed by Respondent United States of America (“Respondent”). (ECF No. 136). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to vacate will be denied and the motion for leave to file a surreply will be granted.

         I. Background

         On February 25, 2013, Petitioner pled guilty to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because Petitioner had prior Maryland convictions for attempted second degree murder, assault with intent to maim, and distribution of cocaine, he was sentenced to 216 months imprisonment as an armed career criminal under 18 U.S.C. § 924(e).

         On March 3, 2015, Petitioner filed a motion to vacate under 28 U.S.C. § 2255. (ECF No. 109). Petitioner argues that he does not meet the statutory definition for an armed career criminal because his Maryland convictions for assault with intent to maim and attempted second-degree murder are not violent felonies. (ECF No. 124, at 1-2).[1]

         II. Surreply

         Local Rule 105.2(a) states that, “[u]nless otherwise ordered by the Court, surreply memoranda are not permitted to be filed.” The court may permit a surreply when a party would not otherwise have an opportunity to respond to arguments raised for the first time in the opposing party's reply. See Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003).

         In his reply brief, Petitioner provided a different interpretation of a case that Respondent discussed in its response brief. As the surreply addresses the new legal theory identified for the first time in the reply brief, it will be accepted.

         III. Procedural Default

         Respondent argues that the petition is procedurally barred because Petitioner did not raise the argument on direct appeal. (ECF No. 134, at 2-3). Although Petitioner concedes not raising the argument on direct appeal, Petitioner claims the failure to raise the argument can be excused because of the new rule of law announced in Johnson v. United States, 135 S.Ct. 2251 (2015). (ECF No. 135, at 12-13).

         For habeas petitions, the general rule is that “claims not raised on direct appeal may not be raised on collateral review[.]” Massaro v. United States, 538 U.S. 500, 504 (2003). “The Supreme Court [of the United States] has recognized an equitable exception to the bar, however, when a habeas applicant can demonstrate cause and prejudice[.]” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010). To demonstrate cause, the petitioner must show a reason for a procedural default based “on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel.” United States v. Mikalajunas, 186 F.3d 490, 493 (4thCir. 1999). The petitioner must also demonstrate that he suffers “actual prejudice” if his claim is not reviewed. Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003). The cause and prejudice exception to procedural default is designed “to induce litigants to present their contentions to the right tribunal at the right time.” Massaro, 538 U.S. at 504 (quoting Guinan v. United States, 6 F.3d 468, 474 (7th Cir. 1993)(Easterbrook, J., concurring)).

         Petitioner was sentenced as an armed career criminal in 2013. The Armed Career Criminal Act (“ACCA”) provides that a person convicted under 18 U.S.C. § 922(g) who has: “three previous convictions . . . for a violent felony or a serious drug offense . . . shall be fined under this title and imprisoned not less than fifteen years[.]” 18 U.S.C. § 924(e)(1)(emphasis added). In turn,

“[V]iolent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another ...

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