United States District Court, D. Maryland
CLARENCE M. RICHARDS Petitioner
UNITED STATES OF AMERICA Respondent
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
Clarence M. Richards, through counsel, has filed a Motion to
Vacate and Set Aside his Sentence under 28 U.S.C. §
2255. ECF No. 45. He seeks an order vacating his sentence on
the basis that he was denied effective assistance of counsel.
The Government agrees that Richards is entitled to relief but
maintains that a § 2255 Motion is the inappropriate
vehicle under the circumstances of this case. ECF No. 57.
Court has considered the Motion and the Government's
response. For the reasons that follow, the Court will AMEND
the Judgment and Commitment Order (ECF No. 35) to reflect
that the Court's sentence as to Count Three, 38
months' imprisonment, is to run concurrently with
Richards' state sentence. Otherwise, his Motion to Vacate
(ECF No. 45) is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
September 29, 2010, Richards engaged in conduct that resulted
in several state charges, including assault, kidnapping, and
use of a handgun in a crime of violence. See State v.
Richards, No. CT-10-14199B (Md. Cir. Ct. P.G. Cty.)
(“state case”). A warrant was issued for
Richards' arrest on these charges and he was eventually
located by the U.S. Marshals on October 8, 2010. At that
time, he was found to be in possession of phencyclidine as
well as a handgun. As a result, Richards was indicted in
federal court on March 21, 2011, on four charges relating to
the drugs and firearm discovered during his arrest. See
United States v. Richards, No. 11-0148, ECF No. 1
(D. Md.) (“federal case”). Specifically, he was
charged with: (1) possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g); (2) possession
of a firearm with an obliterated serial No. in violation of
18 U.S.C. § 922(k); (3) possession with intent to
distribute a controlled substance in violation of 21 U.S.C.
§ 841(a)(1); and (4) possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). Id. Because of his pending
state case, Richards was placed in state custody and was not
transferred into the custody of the U.S. Marshal Service.
December 6, 2011, in the state proceeding, represented by
Michael Lawlor, Esquire, Richards entered a guilty plea
pursuant to a binding plea agreement to an agreed upon
sentence of 20 years' imprisonment, with all but 10 years
months later, on February 22, 2012, before he was sentenced
in state court, Richards, represented by John Chamble,
Esquire, of the Federal Public Defender's Office, pled
guilty in this case to Counts Three and Four of the federal
indictment. ECF Nos. 15, 24. On May 18, 2012, the Court
sentenced him to 38 months of imprisonment on Count Three,
and 60 months of imprisonment, to run consecutively, on Count
Four, resulting in a total sentence of 98 months of
imprisonment. The Court's judgment made no mention of the
relationship between its sentence and the forthcoming
sentence in state court. ECF No. 35.
later, on May 25, 2012, Judge Mittelstaedt of Prince
George's County Circuit Court sentenced Richards to a
total term of 10 years' imprisonment pursuant to the
binding plea agreement. She ordered the sentence to run
concurrently to the federal sentence. ECF No. 57-1, Ex. A at
Judge Mittelstaedt's sentence, Richards remained in state
custody and was not transferred into federal custody until
November 9, 2016, after he had satisfied his state
obligation. At that time, Richards first became aware
that he was not going to receive any credit for his time in
state custody against his federal sentence, as a result of
which he faced a sentence in custody 54 months longer than he
result, Richards filed the present Motion through Attorney
Lawlor, who had been his attorney in the state proceeding.
ECF No. 45. Richards seeks an order vacating his federal
sentence on the grounds that he was denied effective
assistance of counsel because counsel failed to ensure that
his federal and state sentences would run concurrently.
August 22, 2017, before Richards' § 2255 Motion was
ripe for decision, the Bureau of Prisons sent a letter to the
Court indicating that Richards had requested that his federal
sentence run concurrently with his state sentence. ECF No.
49-1. In response, the Court stated that, per its usual
practice, the federal sentence was intended to run
consecutive to any state sentence. ECF No. 49.
on November 2, 2017, the Government filed its response to
Richards' Motion. In it, the Government agreed that
Richards is entitled to some form of relief, but maintains
that he has not satisfied the requisite standard for an
ineffective assistance of counsel claim under § 2255.
ECF No. 57.
assistance of counsel claims are governed by the two-part
test first set forth by the Supreme Court in Stricklan ...