United States District Court, D. Maryland
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
Memorandum addresses the Motion to Vacate, Set Aside, or
Correct Sentence filed by Nebuzarada Nisseau-Bey, the
self-represented Petitioner, under 28 U.S.C. § 2255. ECF
190 (the “Petition”). The Petition is supported
by a memorandum of law. ECF 190-1 (collectively, with ECF
190, the “Petition”). In particular, Petitioner
seeks a resentencing based on the Supreme Court's
decision in Johnson v. United States, 576 U.S.___,
135 S.Ct. 2251 (2015).
government has filed an opposition to the Petition.
See ECF 196. Petitioner has not filed a reply.
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show the prisoner is entitled to no relief
. . . .” This is such a case. No. hearing is necessary.
For the reasons that follow, I shall deny the Petition.
April 14, 2003, in criminal case AMD-02-497, Petitioner
entered a plea of guilty to Count One of an Indictment
charging possession of a firearm by a convicted felon.
See Docket. Judge Andre Davis, to whom the case was
then assigned, sentenced Nisseau-Bey on July 7, 2003, to a
period of incarceration of 70 months, to be followed by a
term of supervised release of three years. ECF 15 (Amended
later, on September 22, 2010, Petitioner was charged with
armed bank robbery and other offenses, in case BEL-10-522.
See ECF 6 (Superseding Indictment). The case was
reassigned to me on October 24, 2017, because of the
retirement of Judge Benson E. Legg, to whom it was initially
assigned. See Docket. It is now case ELH-10-552.
entered a plea of guilty on February 25, 2011, to counts Two
and Three of the Superseding Indictment in case 10-552.
See ECF 41. Count Two charged armed bank robbery and
aiding and abetting, in violation of 18 U.S.C. §§
2113(a), (d), (f) & 2. Count Three charged possession of
a firearm in furtherance of a crime of violence and aiding
and abetting, in violation of 18 U.S.C. §§ 924(c)
was held on June 10, 2011. ECF 103. The Presentence Report
(“PSR”) reflected that Petitioner had 14 criminal
history points, which established a criminal history category
of VI. See ¶¶ 40-42. Moreover, because
Petitioner had two prior felony drug convictions (PSR,
¶¶ 30-31, 36-37), the PSR indicated that Petitioner
qualified as a career offender. PSR, ¶ 43. His criminal
history category remained a VI. Id.
Legg determined that Petitioner had a criminal history
category of VI, with advisory sentencing guidelines of 272 to
319 months' incarceration. ECF 105. Judge Legg sentenced
Petitioner to a term of 96 months' incarceration as to
Count Two, and to the statutory mandatory minimum sentence
for Count Three of 84 months' imprisonment, consecutive,
for a total term of 180 months' imprisonment. ECF 104.
That sentence was well below the advisory guidelines range.
Nisseau-Bey did not note an appeal.
time of the underlying offenses in case 10-552, Nisseau-Bey
was on supervised release in Case 02-497. Case 02-497 was
reassigned to Judge Legg. At a hearing in that case on June
10, 2011 (ECF 20), Judge Legg found that the offenses at
issue in case 10-552 constituted a violation of
Nisseau-Bey's supervised release in case 02-497. With
respect to the violation of supervised release in case
02-497, Judge Legg sentenced Nisseau-Bey to a period of
incarceration of 51 months, concurrent with the sentence he
imposed in case 10-552. ECF 21.
23, 2016, Nisseau-Bey filed the Petition at issue here, based
on Johnson v. United States, 135 S.Ct. 2551 (2015).
It was docketed in case 02-497, at ECF 25. The government
moved to dismiss the Petition, arguing, inter alia,
that Petitioner was no longer in custody in 02-497.
Id., ECF 26. Thereafter, Petitioner filed a Motion
to Amend. Id., ECF 27. He asserted that “a
clerical error was made” in regard to the filing of his
Petition, in that it was filed in the wrong case, case
02-497, rather than in case 10-552. The government moved to
dismiss the Motion to Amend the Petition, arguing it was
barred by limitations. ECF 29.
Order of October 24, 2017 (ECF 32), the Court determined that
the Petition was filed in the wrong case as a result of a
clerical mistake. Therefore, I directed the Clerk to docket
the Petition in Case 10-552. It was docketed on that date, at
ECF 190. And, on that date, case 10-552 was reassigned to me.
view, the Petition should be deemed filed as of June 23,
2016, as that is the date when it was initially docketed in