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Allen v. United States

United States District Court, D. Maryland

December 12, 2017

MALCOLM ALLEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         On October 30, 2009, pro se Petitioner Malcolm Allen (“Petitioner” or “Allen”) pled guilty to one count of possession with intent to distribute fifty grams or more of cocaine base and methamphetamine in violation of 18 U.S.C. § 841(a)(1). (ECF No. 26.) On May 11, 2010, this Court sentenced Petitioner to two-hundred and sixteen (216) months imprisonment.[1] (ECF No. 39.) Allen subsequently filed a Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 49), which this Court granted in part, permitting Allen to file an appeal to the United States Court of Appeals for the Fourth Circuit due to ineffective assistance of counsel, and denied in part, rejecting his argument that he was improperly determined a career offender at sentencing. Allen v. United States, Nos. RDB-08-0222; RDB-11-1143, 2013 WL 1247658 (D. Md. Mar. 25, 2013). Allen then appealed this Court's 2255 decision, which the Fourth Circuit affirmed. United States v. Allen, 567 Fed. App'x. 175 (4th Cir. 2014).

         Currently pending before this Court are Petitioner's Second Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 107), Petitioner's Supplemental Motion to Vacate filed on his behalf by the Office of the Federal Public Defender (OFPD) (ECF No. 116), the OFPD's Motion to Withdraw as Attorney (ECF No. 122), and Petitioner's Motion for Writ of Mandamus (ECF No. 123). For the following reasons, Petitioner's Second Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 107) is DENIED, Petitioner's Supplemental Motion to Vacate filed on his behalf by the OFPD (ECF No. 116) is DENIED, the OFPD's Motion to Withdraw as Attorney (ECF No. 122) is GRANTED, and Petitioner's Motion for Writ of Mandamus (ECF No. 123) is DENIED.

         BACKGROUND

         The background facts of this case were fully set forth in this Court's Memorandum Opinion, and briefly summarized herein. Allen v. United States, Nos. RDB-08-0222; RDB-11-1143, 2013 WL 1247658 (D. Md. Mar. 25, 2013). On April 25, 2007, detectives executed a search and seizure warrant at Petitioner's residence. Id. at *2. At the home, officers found more than fifty grams of cocaine base, one-hundred forty five pills of methamphetamine, and various packaging paraphernalia and other evidence indicating a drug operation. Id. Petitioner was indicted for possession with intent to distribute cocaine base and methamphetamine and possession of materials used to manufacture controlled substances. Id. Petitioner pled guilty to the first count and was sentenced to two-hundred sixteen (216) months imprisonment and five years of supervised release. Id.

         On April 28, 2011, Petitioner filed his first Motion to Vacate, arguing that (1) his counsel was ineffective for failing to file a timely appeal, (2) Petitioner was entitled to re-sentencing under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, and (3) Petitioner was improperly designated as a career offender during sentencing. Allen v. United States, Nos. RDB-08-0222; RDB-11-1143, 2013 WL 1247658 (D. Md. Mar. 25, 2013). As to the career offender designation claim, Petitioner argued that he was improperly classified as a career offender because this Court assigned felony status to a crime for which he spent less than a year in jail. Id. *5. This Court rejected Petitioner's claim, explaining that under the United States Sentencing Guidelines a defendant is deemed a career offender if the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. Id. (citing U.S.S.G. § 4B1.1(a)). A prior felony conviction is defined as an adult charge for a federal or state crime “punishable by death or imprisonment for a term exceeding one year . . . regardless of the actual sentence imposed.” Id. (citing U.S.S.G. § 4B1.2(c)) (emphasis added). While Petitioner actually spent less than one year in jail for the conviction he challenges, the law provided that he could have received up to five years imprisonment. Id. at *6 (citing Petitioner's Pre-Sentencing Report 6; Md. Criminal Law Annotated § 5-607). Accordingly, he was properly designated a career offender. At that time, this Court also denied Petitioner's argument under the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Id. at *6-7.

         However, as to Petitioner's ineffective assistance of counsel claim, this Court ordered that an evidentiary hearing be held to determine whether Petitioner asked his counsel to file an appeal. Id. at *7. Subsequently, after holding the evidentiary hearing and determining that counsel had failed to file an appeal on behalf of Petitioner, this Court ultimately granted in part and denied in part Petitioner's first Motion to Vacate (ECF No. 49). Allen v. United States, Nos. RDB-08-0222; RDB-11-1143, 2013 WL 2490568 (D. Md. June 7, 2013). Accordingly, this Court vacated Petitioner's original judgment (ECF No. 39) and ordered the clerk to enter an amended judgment so that Petitioner could file an appeal. (ECF No. 75.)

         On appeal to the United States Court of Appeals for the Fourth Circuit, the Fourth Circuit affirmed Petitioner's sentence. United States v. Allen, 567 Fed. App'x. 175 (4th Cir. 2014). For one ground of his appeal, Petitioner again argued “that his prior narcotics conviction was not a proper career offender predicate because it was allegedly not ‘punishable by imprisonment for a term exceeding one year' under [United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)].Id. The Fourth Circuit rejected Petitioner's argument given that Petitioner's prior narcotics conviction was in violation of a Maryland law that carried a maximum penalty of five years. “The fact that Allen served less than a year in jail is not dispositive of the issue.” Id. at 177 (citing United States v. Kerr, 737 F.3d 33, 38 (4th Cir. 2013)). Petitioner filed for a petition for writ of certiorari to the United States Supreme Court, which was denied. Allen v. United States, 135 S.Ct. 300 (2014) (Mem).

         Ultimately, on February 18, 2015, this Court did grant a motion by the Petitioner for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) due to a lowered guideline sentencing range made retroactive by the United States Sentencing Commission pursuant to 28 U.S.C. § 994. (ECF No. 105.) His sentence was reduced to one-hundred eighty (180) months. (Id.) On April 6, 2015, Petitioner filed the instant second Motion to Vacate, arguing that this Court erred by failing to appoint Petitioner counsel during his evidentiary hearing and that his counsel was ineffective for failing to object to the applicability of his career offender enhancement. (ECF No. 107.)

         STANDARD OF REVIEW

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside, or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). Further, “an error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428)

         ANALYSIS

         I. Petitioner is not entitled to relief on his first claim

         Petitioner's first argument is that this Court erred by failing to appoint him counsel during the evidentiary hearing related to his first 2255 Motion. (ECF No. 107 at 4.) In support of his argument, Petitioner cites Rule 8(c) of Rules Governing Section 2255 Cases in the United States District Courts. Petitioner's claim fails for two reasons. First, not appointing Petitioner counsel during his evidentiary hearing was not in violation of the Constitution or federal law. Rule 8(c) states “[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a moving party who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” Section 3006A, in relation to 2255 motions, then states that representation may be provided for any financially eligible person seeking relief under section 2255 “if the interests of justice so require.” 18 U.S.C. § 3006A(2). Prior to the hearing, this Court denied Petitioner's Motion for Appointment of Counsel related to his 2255 Motion, explaining that there is no Sixth Amendment right to counsel in collateral proceedings, Petitioner had already adequately presented his claims and grounds for relief in his 2255 Motion, and “the interests of justice” did not so require ...


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