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Walker v. United States

United States District Court, D. Maryland

April 27, 2018

ANDRE ANTOINE WALKER, Petitioner
v.
UNITED STATES OF AMERICA, Respondents

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.

         Andre Antoine Walker, a self-represented prisoner, has filed a Motion to Vacate under § 2255. In his Motion, Walker challenges his convictions and 162 month term of imprisonment for bank robbery and related offenses. ECF No. 110.

         On January 25, 2018, the Court ordered the Government to respond to Walker's Motion within 60 days. The response was not forthcoming. On April 5, 2018, Petitioner filed a Motion to Grant his § 2255 Motion as Unopposed. ECF No. 112. On April 10, 2018, the Court granted Respondent's Motion for Extension of Time to respond to the § 2255 Motion. ECF Nos. 114, 116. On April 20, 2018, Petitioner filed a Motion for Reconsideration of the Court's Order. ECF No. 118.

         After reviewing the Motions, the Court finds no need for an evidentiary hearing. For the reasons set forth below, Petitioner's Motion for Reconsideration is GRANTED and the Court's Order granting an extension of time is STRICKEN; the Motion to Grant the § 2255 as unopposed is DENIED; the § 2255 Motion is DENIED; and a certificate of appealability shall not issue.

         BACKGROUND

         On October 7, 2015, Walker was indicted for two counts of bank robbery and one count each of armed bank robbery, brandishing a firearm in relation to a crime of violence (i.e., bank robbery), and conspiracy to commit bank robbery. ECF No. 1. Pursuant to a written plea agreement, Walker pled guilty to all five charges. ECF No. 48. The Court sentenced Walker to the statutory minimum 84 months' imprisonment on the firearm count, and issued a within-Guidelines sentence of 78 months' imprisonment on the remaining counts, for a total term of 162 months' imprisonment. ECF No. 104.

         Walker filed a timely appeal, challenging whether bank robbery was a crime of violence for purposes of the brandishing a firearm charge (an issue he had specifically preserved for appeal under the terms of his plea agreement, see ECF No. 48 at 7) and whether his sentence was procedurally reasonable. In a decision issued on April 5, 2017, the United States Court of Appeals for the Fourth Circuit rejected both arguments and affirmed Walker's criminal judgment. United States v. Green, Nos. 16-4347, 16-4468, 684 Fed.Appx. 300 (4th Cir. 2017).

         On January 24, 2018, Walker filed a timely § 2255 Motion. ECF No. 110. The following day, the Court issued an order instructing the Government to respond within 60 days. ECF No. 111. The Government failed to do so, and on April 5, 2018, Walker filed a Motion asking the Court to grant his § 2255 as unopposed, noting that the Government had failed to timely respond and asserting that his § 2255 Motion was "extraordinarily meritorious." ECF No. 112. On April 9, 2018, the Government filed a Motion for an Extension of Time to file its Response, explaining that the Assistant U.S. Attorney previously assigned to the case "ha[d] been detailed away from the U.S. Attorney's Office" prior to the filing of the Motion to Vacate. ECF No. 114. Based on this filing, the Court granted the Government's Motion for Extension of Time on April 10, 2018. ECF No. 116. On April 20, 2018, the Court received a Motion from Walker asking that the Court reconsider the Order granting an extension of time. ECF No. 118.

         STANDARD OF REVIEW

         This Court recognizes that Walker is self-represented and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.' " United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         ANALYSIS

         I. Motion for Reconsideration

         Pursuant to Fed.R.Civ.P. 6(b)(1), "[w]hen an act may or must be done within a specified time, the court may, for good cause, extend the time ... on motion made after the time has expired if the party failed to act because of excusable neglect." Here, the Court granted Respondent's Motion to extend the time to respond to Walker's Motion to Vacate. In seeking reconsideration of this ruling, Walker notes that the Court did not make a specific finding of excusable neglect. ECF No. 118 at 2-3.

         Although the Court's Order did state that it was granting Respondent's Motion after "find[ing] there is good cause in support of the motion, " the Court did not engage in a specific discussion of excusable neglect. ECF No. 116. Similarly, although Respondent's Motion for an extension of time to respond explained that Assistant U.S. Attorney Aaron Zelinsky, counsel of record, "has been detailed away from the U.S. Attorney's Office" before Walker's § 2255 Motion was filed (thereby suggesting a reason for belated request), Respondent did not specifically argue that this amounted to excusable neglect.

         Based on the above shortcomings and in an abundance of caution, the Court will grant Walker's Motion for Reconsideration and strike its earlier Order granting the Motion for Extension of Time. Although the Court would ordinarily allow Respondent the chance to offer a fuller argument as to why the Government should be permitted an extension of time to respond, it is apparent from the face of Walker's § 2255 Motion that he is not entitled to relief. Accordingly, the Court will presently examine the merits of the Petition without requiring a response or further briefing.

         II. § 2255 Motion

         In his § 2255 Motion, Walker contends that his appellate counsel provided ineffective assistance because she failed to:

[(1)] Either: 1) Request that Walker's case be placed in abeyance pending the Outcome of Dean v. U.S., 137 S.Ct. 1170 (2017); 2) Advise the Circuit Court via a F.R.A.P., Rule 28(j) Letter of the Dean Decision; or 3) Request leave to file a Supplemental Brief based on Dean, i.e., A pertinent and significant authority that could ultimately have resulted in the imposition of a lesser sentence on Walker's predicate bank robbery offense.
. . .
[2] Argue that 18 U.S.C. § 2113(a) is a lesser included offense of 18 U.S.C. § 2113(d), and hence, the imposition of a sentence on both counts violated Walker's rights under the Double Jeopardy Clause
. . .
[3] Argue that the mitigating circumstances of Walker's case warranted a five .. . level sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(C) instead of the harsher 18 U.S.C. § 924(c) statutory weapon enhancement - and the charging of the § ...

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