Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. United States

United States District Court, D. Maryland

June 13, 2018

TORRE L. JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         On November 18, 2011, Torre Johnson (“Petitioner”) pleaded guilty to Armed Bank Robbery, 18 U.S.C. § 2113(a)(d)(f), and Aiding and Abetting, 18 U.S.C. § 2. (ECF No. 54.) On February 6, 2012, Petitioner was sentenced to 108 months' imprisonment. (ECF No. 66.) Petitioner did not appeal his conviction.

         Petitioner, now incarcerated at FCI Ray Brook in Ray Brook, New York, has moved to vacate his sentence under 28 U.S.C. § 2255. (ECF Nos. 96 and 107.) Pending now are two Motions to Vacate under 28 U.S.C. § 2255 (ECF Nos. 96 and 107) and a Motion for Abeyance[1] (ECF No. 112). Having reviewed the parties' submissions, this Court finds that no hearing at this time is necessary. See, e.g., United States v. Lemaster, 403 F.3d 216, 220-23 (4th Cir. 2005) (holding that a hearing must be held “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief . . .”); United States v. White, 366 F.3d 291, 302 (4th Cir. 2004); United States v. Taylor, 139 F.3d 924, 933 (D.C. Cir. 1998); see also Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, Petitioner's Motions to Vacate (ECF Nos. 96 and 107) are DENIED, and Petitioner's Motion for Abeyance (ECF No. 112) is DENIED AS MOOT.

         BACKGROUND

         On June 23, 2011, Petitioner was indicted for Conspiracy to Commit Armed Bank Robbery, 18 U.S.C. § 371, Armed Bank Robbery, 18 U.S.C. § 2113(a)(d)(f), and Aiding and Abetting, 18 U.S.C. § 2. (ECF No. 1.) Petitioner pleaded guilty to one count of Armed Bank Robbery, 18 U.S.C. § 2113(a)(d)(f), and one count of Aiding and Abetting, 18 U.S.C. § 2. (ECF No. 66.) The charge of Conspiracy to Commit Armed Bank Robbery was dismissed on motion from the United States. (Id.) The calculation of the advisory guidelines resulted in a range of 188 to 235 months, (31 VI), as the Petitioner was classified as a Career Offender pursuant to U.S.S.G. § 4B1.1. (ECF No. 100 at 1.) This guideline range determination was set forth in the Presentence Report in which the bank robbery was classified as a crime of violence. However, this classification had absolutely no effect on the sentencing in this case. The Court issued a sentence of 108 months which was well below the advisory guideline range.

         On August 14, 2015, Petitioner moved to vacate his sentence pursuant to 28 U.S.C. § 2255 (“Motion A”). (ECF No. 96.)[2] The Federal Public Defender's Office filed a Supplemental Motion to Vacate on June 8, 2016 (ECF No. 100), which was subsequently withdrawn (ECF No. 102).[3] On December 4, 2017, Petitioner filed an additional Motion to Vacate under § 2255 (“Motion B”). (ECF No. 107.)[4] The Government responded in opposition to both Motions to Vacate on January, 10, 2018. (ECF No. 109.) Following the response asserting Petitioner's motions to vacate were untimely, this Court ordered that Petitioner was granted 28 days from February 13, 2018 to provide the Court further information regarding his entitlement to equitable tolling for the one-year statute of limitations in each of his pending civil cases. (ECF No. 111.) On March, 5, 2018, Petitioner responded by filing a Motion of Abeyance. (ECF No. 112.)

         STANDARD OF REVIEW

         As the Petitioner proceeds pro se, this Court must construe his pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., No. 17-1249, 698 Fed. App'x 141 (Mem) (4th Cir. Oct. 5, 2017) (citing Erickson for the proposition that “[p]ro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers”).

         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).

         The scope of a § 2255 collateral attack is far narrower than an appeal, and a “‘collateral challenge may not do service for an appeal.'” Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, procedural default will bar consideration under § 2255 of any matters that “could have been but were not pursued on direct appeal, [unless] the movant . . . show[s] cause and actual prejudice resulting from the errors of which he complains.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).

         A one-year statute of limitations applies to § 2255 petitions. 28 U.S.C. § 2255(f). The limitations period runs from the latest of:

(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Id.; see also Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014). A conviction becomes final for the purpose of starting the one-year limitations period when the opportunity to appeal expires. See Clay v. United States, 537 U.S. 522, 524-25 (2003); Unite ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.