United States District Court, D. Maryland
TORRE L. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Richard D. Bennett United States District Judge.
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.
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 (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.
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.
August 14, 2015, Petitioner moved to vacate his sentence
pursuant to 28 U.S.C. § 2255 (“Motion A”).
(ECF No. 96.) 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). On December 4, 2017, Petitioner filed an
additional Motion to Vacate under § 2255 (“Motion
B”). (ECF No. 107.) 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.)
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”).
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
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)).
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 ...