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Nisseau-Bey v. United States

United States District Court, D. Maryland

April 20, 2018

NEBUZARADA NISSEAU-BEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ELLEN L. HOLLANDER, UNITED STATES DISTRICT JUDGE

         This 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).

         The government has filed an opposition to the Petition. See ECF 196. Petitioner has not filed a reply.

         Under 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.

         I. Procedural Background

         On 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 Judgment).[1]

         Years 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.

         Petitioner 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) & 2.[2]

         Sentencing 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.[3] 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.

         Judge 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.

         At the 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.

         On June 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.

         In an 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.

         In my view, the Petition should be deemed filed as of June 23, 2016, as that is the date when it was initially docketed in case ...


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