United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
September 19, 2008, Andre Brown ("Mr. Brown" or
"Petitioner") pleaded guilty to possession of a
firearm in furtherance of a drug trafficking crime resulting
in death, in violation of 18 U.S.C. § 924(j). (ECF No.
209.) On December 11, 2008, this Court sentenced Petitioner
to three-hundred and sixty (360) months' imprisonment.
(ECF No. 241.)
November 11, 2017 Petitioner filed the pending Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255. (ECF No: 470.) The Government's Response, filed
February 9, 2018, argues that Petitioner's filing is
untimely under 28 U.S.C. § 2255(f). (ECF No. 474.) On
February 13, 2018, this Court ordered Petitioner to provide
further information regarding his entitlement to either (a)
one of the exceptions provided in 28 U.S.C. § 2255, or
(b) equitable tolling of the one-year statute of limitations.
(ECF No. 475.) Petitioner answered the Order on March 16,
2018. (ECF No. 476.) The parties' submissions have been
reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2016). For the reasons stated herein,
Petitioner Brown's Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (ECF No. 470) is
1996 to 2001, Jermaine Bell led a narcotics-trafficking
organization known as "R-&-G," which
distributed heroin, cocaine, and crack cocaine in the
vicinity of Reisterstown Road and Gwynn Falls Parkway in
Baltimore City. (ECF No. 209.) In 2001, as part of a drug
turf war, Bell issued contracts for the murders of a rival
gang's leader and several of the leader's associates.
(Id.) Angelo Stringfellow was among the named
associates, and Bell offered $25, 000 for his murder.
(Id.) Per Bell's order, several individuals,
including Mr. Brown, searched for Stringfellow, and on June
26, 2001, Brown and a co-defendant shot and killed
Stringfellow as he sat in a parked car. (Id.)
September 19, 2008, Petitioner Brown pleaded guilty to Count
Four of the Fourth Superseding Indictment (ECF No. 209),
which charged him with possession of a firearm in furtherance
of a drug trafficking crime resulting in death, in violation
of 18 U.S.C. § 924(j). This Court sentenced Petitioner
to three-hundred and sixty (360) months' imprisonment.
(ECF No. 241.)
November 19, 2009, Petitioner filed a Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255
asserting that he was denied his right to appeal and that he
received ineffective assistance of counsel. (ECF No. 291.)
This Court granted Petitioner's claim that defense
counsel improperly denied his request to file a notice of
appeal, and denied the other claims. (ECF No. 319-20.)
Therefore, on August 4, 2010, this Court entered an Amended
Judgment (ECF No. 321) allowing Petitioner to file a Notice
of Appeal (ECF No. 324), which he filed that same day.
Petitioner was appointed counsel to support his appeal. (ECF
No. 327.) On May 19, 2011, the United States Court of Appeals
for the Fourth Circuit affirmed this Court's Judgment,
finding that Petitioner's guilty plea was knowing,
voluntary, and supported by an adequate factual basis.
United States v. Brown, 429 Fed.Appx. 328, 328-29
(4th Cir. 2011). The Fourth Circuit also found that his
sentence was reasonable. Id.
November 11, 2017, more than five years after the Fourth
Circuit affirmed the Judgment, Petitioner filed the pending
Motion to Vacate under 28 U.S.C. § 2255 arguing that (1)
he is actually innocent because his conduct was not
proscribed by the statute of conviction to which he pleaded
guilty and that (2) but for ineffective assistance of
counsel, he would not have pleaded guilty. (ECF No. 470.)
Petitioner filed the Motion based on an Affidavit signed on
October 24, 2017. (ECF No. 470-1.)
Court recognizes that Petitioner is pro se 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).
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 of the
United States, 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); United States
v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004).
innocence, if prove [n], serves as a gateway through which a
petitioner may pass [notwithstanding] expiration of the
statute of limitations." McQuiggin v. Perkins,
569 U.S. 383, 386 (2013) (Holding actual innocence is a
miscarriage of justice exception to excuse an otherwise
untimely habeas petition). An actual innocence claim
"does not by itself provide a basis for relief'
under 28 U.S.C. § 2255. Schlup v. Delo, 513
U.S. 298, 315 (1995). Rather, it is "a gateway through
which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits."
Id. at 315. The Supreme Court has made clear that
"actual innocence means factual innocence, not mere
legal insufficiency." Bousley v. United States,
523 U.S. 614, 623-24 (citing Sawyer v. Whitley, 505
U.S. 333, 339 (1992)). "[T]enable actual-innocence
gateway claims are rare." McQuiggin, 569 U.S.
at 386. A credible actual innocence claim requires new
reliable evidence "whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence" that was not presented at trial.
Schlup, 513 U.S. at 324. "[A] petitioner does
not meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, - no
juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt" Id. at 329.
"Without any new evidence of innocence, even the
existence of a concededly meritorious constitutional
violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to
reach the merits of a barred claim." Id. at
asserts that the Affidavit of Jermaine Bell (ECF No. 470-1)
proves he could not have been convicted under 18 U.S.C §
9240, the statute he pleaded guilty to, because of the
Supreme Court's holding in United States v.
Rodriguez-Moreno,526 U.S. 275 (1999). Therefore,
Petitioner claims he is actually innocent of his statute of
conviction. Furthermore, petitioner alleges that his
pre-trial counsel provided ...