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Marks v. Barnett

United States District Court, D. Maryland

December 13, 2017

RUSSELL MARKS, Petitioner,
TIM BARNETT, Respondent.


          Ellen Lipton Hollander, United States District Judge.

         This Memorandum Opinion resolves a petition for habeas corpus filed under 28 U.S.C. § 2241 by Russell Marks, petitioner, in January 2017. ECF 1.

         The 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.

         The 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 “Petition.”[1]

         Barnett, 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.

         Marks 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.

         No 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.

         I. Background[2]

         A. Case History

         Count 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.

         The 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 at 17.

         At 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 20.

         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.

         The 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 conspiracy.”

         In the 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.

         However, despite Marks's objections, the Amended Judgment lists “07/30/91” as the “Date Offense Concluded.” Id. at 34.

         Marks 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).[3] 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.

         B. Marks's Petition

         Marks 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, ...

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