United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
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. (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.
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 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.
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.
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.)
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).
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.)
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)
Petitioner is not entitled to relief on his first
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 ...