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Holloway v. United States

United States District Court, D. Maryland

August 1, 2018

RICKY LEE HOLLOWAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          ROGER W. TITUS UNITED STATES DISTRICT JUDGE

         Now pending before the Court are Petitioner's (1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Motion”), ECF No. 207, and (2) Motion to Amend and Supplement Pursuant to Federal Rule of Civil Procedure 15(c) and (d) (“Motion to Amend”), ECF No. 252. For the reasons discussed below, the Court will deny both Motions.

         1. Background Facts

         On December 2, 2013, a grand jury indicted Petitioner for (1) conspiracy to distribute and possess with intent to distribute one kilogram or more of phencyclidine, in violation of 21 U.S.C. § 846, and (2) distribution and possession with intent to distribute a mixture or substance containing 100 grams or more of phencyclidine, in violation 21 U.S.C. § 841(a)(1) and 18 US.C. § 2. ECF No. 17. On December 19, 2013, Petitioner had his initial appearance. ECF No. 25. On March 5, 2014, the Court issued an Order scheduling a six-day trial to begin on October 9, 2014. ECF No. 52. On May 5, 2014, Petitioner filed consolidated pretrial motions to suppress statements he made, sever counts from the Superseding Indictment, and sever his trial from that of his co-defendants. ECF No. 66. The Government responded on July 18, 2014. ECF No. 68. On August 27, 2014-more than eight months after his initial appearance and forty-three days before trial-Petitioner signed a plea agreement. ECF No. 83.

         Before signing the plea agreement, Petitioner's counsel mailed him a letter explaining his plea options. ECF No. 207-1. The letter indicated that Petitioner could agree to a “C” plea, which, if accepted by the Court, would have bound him to a sentence of 168 months imprisonment. Id. Alternatively, Petitioner could agree to a sentencing range of 168 to 188 months, with the Government making a low-end recommendation of 168 months. Id. Petitioner was told that he would be free to request that the Court impose a lower sentence, but not less than the mandatory minimum of ten years. Id. Petitioner chose the latter option. ECF No. 83.

         The plea agreement provided that (1) Petitioner's Base Offense Level (“BOL”) was 38 under U.S.S.G. § 2D1(c)(1), (2) the Government would not oppose a 2-level reduction of the BOL to 36 for his prompt recognition and affirmative acceptance of personal responsibility for his criminal conduct pursuant to § 3E1.1(a), (3) the BOL could be reduced to 34 in anticipation of the forthcoming changes to the Drug Quantity Table in U.S.S.G. § 2D1.1, and (4) there was no agreement on his criminal history or criminal history category. Id. ¶¶ 8a, 8b 9, 11.

         The plea agreement further set out the nature of Petitioner's charge and the elements of his offense. Paragraph One explained the offense to which Petitioner would plead guilty. Id. ¶ 1. Paragraph Two explained the elements of that offense. Id. ¶ 2. The plea agreement also stated the following under the Factual and Advisory Guidelines Stipulation section:

This Office and [Petitioner] agree that with respect to the calculation of criminal history and the advisory guidelines range, no other . . . adjustments set forth in the United States Sentencing Guidelines will be raised or are in dispute. [Petitioner] reserves the right to argue for a sentence outside of the advisory guidelines range, and will notify the Court, the United States Probation Officer, and government counsel at least fourteen days in advance of sentencing of the facts or issues he intends to raise.

Id. ¶ 10 (emphasis added).

By signing the plea agreement, Petitioner affirmed the following:
I have read this agreement . . . and carefully reviewed every part of it with my attorney. I understand it, and I voluntarily agree to it. Specifically, I have reviewed the Factual and Advisory Guidelines Stipulation with my attorney, and I do not wish to change any part of it. I am completely satisfied with the representation of my attorney.

Id. at 8 (emphasis added). Petitioner's counsel signed the agreement as well. Id. By signing the agreement, Petitioner waived his right to appeal except if the sentence imposed exceeded the Guidelines range provided for in the agreement or there was a technical error. Id. at 6.

         On August 28, 2014, Petitioner pleaded guilty to conspiracy to distribute one kilogram or more of a mixture or substance containing a detectable amount of phencyclidine, in violation of 21 U.S.C. § 846. ECF No. 82. At the rearraignment hearing, Petitioner told the Court that he had received the Superseding Indictment, had discussed the charges with his attorney, and was satisfied with the advice of his counsel. ECF No. 213 at 4:9-20. When the Court asked about the plea agreement, Petitioner responded that he had read it, that he discussed its contents with his attorney, that his attorney was able to answer any questions that he had about it, and that he signed it. Id. at 5:4-21. The Government then summarized the plea agreement for the Court and specifically outlined how the Guidelines were calculated, never mentioning U.S.S.G. § 3E1.1(b). Id. at 7:8-13:13, 8:2-6, 8:19-11:13. Afterwards, Petitioner told the Court that he did not have any concerns about the summary and that it was accurate. Id. at 13:22-25, 14:1-3.

         The Court then asked Petitioner if he and his attorney had discussed the Guidelines, and Petitioner confirmed that they had. Id. at 18:23-19:1. Even so, the Court explained how the Guidelines worked and how they would be used to calculate his sentence. Id. at 18:23-24:4. The Court explained to Petitioner that his BOL would be 38, but it would be reduced by two levels to 36, and that his level could be reduced even further to 34 if the Guidelines changed. Id. at 20:24-21:5, 21:16-23. Petitioner indicated that he understood all of this. Id. at 20:24-25, 21:1-23. Guidelines § 3E1.1(b) was never mentioned, and when the Court asked Petitioner if the plea agreement was the “entire agreement, ” and whether anyone made private deals with or secret assurances to him, Petitioner indicated that no one had and the agreement was the whole deal. Id. at 15:6-23. The Court later concluded that Petitioner was fully competent and capable of entering the plea, that his plea was knowing and voluntary, and that he was aware of the nature and consequences of his plea. Id. at 31:25-32:8.

         On January 21, 2015, the Court sentenced Petitioner to 168 months imprisonment followed by five years of supervised release. ECF No. 168. In determining Petitioner's sentence, the Court found Petitioner's BOL to be 34 and his criminal history category to be II instead of III because of an overrepresented 2003 conviction, resulting in a Guidelines range of 168 to 210 months imprisonment. ECF No. 169. Petitioner's attorney did not ask for an adjustment under U.S.S.G. § 3E1.1(b), nor did the Government move for one. Petitioner's attorney did ask the Court to sentence Petitioner below the Guidelines range to the statutory minimum of ten years imprisonment. Id. As support, Petitioner's attorney provided the Court with a letter from Petitioner, information on Petitioner's background, and testimony by members of Petitioner's family. Id. Petitioner also asked the Court himself for the mandatory minimum. Id. Petitioner did not appeal his sentence.

         Petitioner filed his § 2255 Motion on February 1, 2016, claiming that his counsel provided ineffective assistance by not seeking a sentence adjustment under U.S.S.G. § 3E1.1(b). ECF No. 207. The Government filed its Opposition to Petitioner's § 2255 Motion on May 2, 2016. ECF No. 218. Petitioner filed his Motion to Amend on June 2, 2017, adding new claims that his counsel was ineffective by failing (1) to inform him of the true nature of the charges against him, and (2) to appeal his sentence, and that his sentence was in plain error.

         ECF No. 252. The Court ordered the Government to respond to Petitioner's Motion to Amend on May 15, 2018, ECF No. 283, which the Government did on June 1, 2018 (“Response”). ECF No. 285. Petitioner filed a Reply to the Government's Response (“Reply”), in which he appears to add a new claim of ineffective assistance of counsel as well as a new claim challenging the order of forfeiture against him. ECF No. 291. The Government filed, with the Court's permission, a Surreply, addressing the added claims in Petitioner's Reply. ECF No. 294.

         2. Petitioner's ...


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