United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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.
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).
Motion for Reconsideration
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.
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.
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.
§ 2255 Motion
§ 2255 Motion, Walker contends that his appellate
counsel provided ineffective assistance because she failed
[(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
 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
 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 § 924(c) count was indicative of a
disparate and flawed prosecution.
1 at 17, 28, 30 (some capitalization altered).
order to establish ineffective assistance of counsel, Walker
must satisfy the two-pronged test established in
Strickland v. Washington,466 U.S. 668, 671 (1984).
First, Walker must show that his counsel's performance
was deficient such that it fell below an "objective
standard of reasonableness." Id. at 688. In
assessing whether counsel's performance was deficient,
courts adopt a "strong presumption" that an
attorney's actions fall within the "wide range of
reasonable professional assistance." Id. at
689. Second, Walker must show that his counsel's
performance was prejudicial, meaning that Walker was
"depriv[ed] ... of a fair trial." Id. at
687. To demonstrate such prejudice, Walker must show there
was a "reasonable probability that, but for
counsel's [alleged] unprofessional errors, the ...