United States District Court, D. Maryland
Lipton Hollander, United States District Judge.
Memorandum Opinion resolves a petition for habeas corpus
filed under 28 U.S.C. § 2241 by Russell Marks,
petitioner, in January 2017. ECF 1.
Petition is rooted in the events of November 2, 1992, in the
United States District Court for the Western District of
Missouri, when Marks entered a plea of guilty to the charges
of conspiracy to distribute cocaine, in violation of 21
U.S.C. § 846, and conspiracy to commit money laundering,
in violation of 18 U.S.C. § 371. ECF 1-2 at 13-14
(Excerpt of guilty plea transcript); id. at 16-17
(Presentence Report). As to the conspiracy to distribute
cocaine, Marks was sentenced to a mandatory term of life in
prison. Id. at 32 (Statement of Reasons). He is
currently incarcerated in Maryland. See ECF 1 at 2.
petition focuses on the sentence imposed with respect to
Marks's conviction for conspiracy to distribute cocaine.
ECF 1-1. Marks contends that defendant Tim Barnett, an
officer of the U.S. Bureau of Prisons (“BOP”) and
Marks's custodian, is improperly executing his sentence.
ECF 1. The petition is supported by a memorandum of law (ECF
1-1) and ten exhibits. ECF 1-2. Marks subsequently filed an
amended memorandum. ECF 3. I shall refer to ECF 1, ECF 1-2,
and ECF 3 collectively as the
a BOP official, has moved to dismiss the Petition under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative,
for summary judgment under Fed.R.Civ.P. 56. ECF 7. The motion
is supported by a memorandum of law. ECF 7-1 (collectively,
“Motion”). Barnett contends that Marks is
challenging the legality of his sentence, not its execution,
and that such a challenge is properly brought under 28 U.S.C.
§ 2255, not § 2241. ECF 7-1 at 6-7. Because a
§ 2255 petition is long overdue, and could only be
brought in the district in which sentencing occurred
(Missouri, not Maryland), Barnett asserts that the Petition
must be dismissed for lack of subject matter jurisdiction,
and for failure to state a claim. Id. at 7-8.
opposes the Motion (ECF 8), supported by a memorandum (ECF
8-1) (collectively, the “Opposition”). He argues,
inter alia, that “his sentence should be
executed as imposed pursuant to the Anti-Drug Abuse Act of
1986 instead of the Sentencing Reform Act of 1984.” ECF
8-1 at 1. The government did not reply.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall
construe the Motion as a motion to dismiss and grant it.
One of the Second Superseding Indictment (ECF 1-2 at 10-11),
to which Marks pleaded guilty, states: “Beginning in or
about June, 1987, and continuing to in or about July, 1991,
” Marks conspired to distribute cocaine. Id.
at 11. Marks's presentence report (“PSR”)
also specified the dates of the criminal conduct
(id. at 17):
From at least July, 1987, until the time of his arrest in the
instant case [in 1991], Russell Bradley Marks was the leader
of a cocaine distribution organization involving more than
five participants. As part of the instant conspiracy, Marks
obtained kilogram quantities of cocaine from a source
(“Chicho”) in Miami, Florida. From July, 1987, to
January, 1988, Marks made between 10 and 14 trips to Florida
to obtain cocaine.
dates of the criminal conduct were important because
different laws governed the sentencing, depending on when the
criminal conduct occurred. Marks asserts that if his
involvement in the conspiracy ended on or before October 31,
1987, the Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,
100 Stat. 3207 (1986), would have applied. ECF 1-1 at 1-2. If
Marks's involvement in the conspiracy continued beyond
October 31, 1987, but ended before November 18, 1988, he
contends that the Sentencing Reform Act of 1984, Pub. L. No.
98-473, § 211 et seq., 98 Stat. 1837 (1984),
would apply. ECF 1-1 at 1-2. If the offense continued beyond
November 18, 1988, Marks would be subject to the Anti-Drug
Abuse Act of 1988, Pub. L. 100-690, 102 Stat. 4181 (1988).
Under the first two laws, Marks claims he would be eligible
for parole. ECF 1-1 at 1-2. Under the third, he is
not. Id. at 2. The PSR stated: “Because all
offenses . . . occurred after October 31, 1987, the
Sentencing Reform Act of 1984 is applicable.” ECF 1-2
Marks's guilty plea, United States District Judge Russell
Clark advised Marks that he would have a right to challenge
the PSR. ECF 1-2 at 14. Through counsel, Marks filed an
objection to the PSR, on several grounds. ECF 1-2 at 19-22.
He asserted, inter alia, that “if the
Sentencing Reform Act of 1984 is applicable, sentence only
for conduct occurring after October 31, 1987, is appropriate.
On the other hand, . . . if [Marks] is to be sentenced for
conduct occurring prior to October 31, 1987, the Sentencing
Reform Act of 1984 is not applicable.” Id. at
sentencing, Marks appeared pro se, with advisory
counsel. Id. at 24, 31. He made similar objections
at his sentencing hearing. Id. at 24-29 (Excerpt of
Sentencing Transcript). Marks maintained that drug
transactions that occurred prior to November 18, 1988, were
not subject to the mandatory sentencing provisions in 21
U.S.C. § 841(b)(1)(A), and that the government had
“to have five kilos after November 1988 to avoid any ex
post facto problems.” Id. at 26. Further, the
defendant reiterated that the government failed to
“distinguish between whether these acts were
committed before November 18th or after November 18th. And,
if these acts were committed prior to November 18th, then the
mandatory life sentence provisions of 18 U.S.C. (b)(1)(a)
[sic] do not apply.” Id. at 27-28.
judge disagreed. He said, id. at 28-29: “I
think I need to make only one finding concerning the
presentence report, . . . and that is there was more than
five kilograms of cocaine involved during the course of this
Statement of Reasons, the sentencing court wrote,
id. at 35:
The only factual findings made by the Court were that more
than 5 kilograms of cocaine were involved in the conspiracy
and that the defendant had 3 prior drug convictions. With
respect to all other portions of the presentence report to
which the defendant had objected, the Court make
[sic] no finding. Those portions of the PSR to which
the defendant has not objected are adopted by the Court.
despite Marks's objections, the Amended Judgment lists
“07/30/91” as the “Date Offense
Concluded.” Id. at 34.
appealed his conviction and sentence-a fact that neither
Marks nor the government mentioned in their submissions.
See United States v. Marks, 38 F.3d 1009 (8th Cir.
1994). On direct appeal, the Eighth Circuit
considered a number of alleged defects in the proceedings
below, and found no error. Id. Among these issues
was the one Marks raises in this case: whether “the
District Court erred in applying 21 U.S.C. § 841's
mandatory life sentence as no evidence was presented at the
sentencing hearing to establish clearly that any cocaine
transaction took place after the effective date of that
section.” Id. at 1015. The Eighth Circuit
found that Marks's guilty plea to the charge that he
conspired to distribute cocaine from June 1987 to July 1991
established that the conspiracy “continued long after
the effective date of the amendment to 21 U.S.C. §
841.” Id. at 1016. The court of appeals
therefore affirmed the district court. Id.
complains that the trial court made no finding as to the
period of the conspiracy, or how much cocaine was distributed
after October 31, 1987, or November 18, 1988. He contends
that the Amended Judgment is internally inconsistent and the
date is therefore ambiguous. ECF 1-1 at 4-5. As such, on
January 23, 2017, Marks, initially proceeding pro
se, filed his Petition requesting that this Court direct
the BOP to correct the end date of the offense from July 30,