United States District Court, D. Maryland
MARCO A. WILLIAMS
UNITED STATES OF AMERICA
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
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
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).
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).
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).
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.
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).
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)).
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).
“[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