United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution are the motions to vacate
sentence pursuant to 28 U.S.C. § 2255 and to compel
filed by Petitioner Kevin Lynn Blake
(“Petitioner”). (ECF Nos. 30, 43). The issues have
been fully briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following
reasons, the motion to vacate will be denied and the motion
to compel will be dismissed.
entered into an agreement with the Government pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C) (a
“C-Plea”) on March 9, 2011. Petitioner pled
guilty to a violation of 18 U.S.C. § 922(g)(1). The
parties stipulated that: Petitioner had at least one prior
conviction for a crime of violence under the United States
Sentencing Guidelines (the “Guidelines”) §
2K2.1(a)(4)(A) and thus his base offense level was at least
and Petitioner's criminal history category was at least a
IV. The Government stipulated that it would not oppose a
2-level reduction for acceptance of responsibility and would
move for an additional 1-level reduction for timely
notification of an intention to plead guilty.
regard to the guideline calculation, the parties included the
following paragraph 6.b:
If the Defendant committed part of the instant offense after
sustaining two felony convictions of crimes of violence, base
offense level would increase to 24. See U.S.S.G.
§ 2K2.1(a)(2). If the defendant committed this offense
after having three previous convictions for a violent felony
or a serious drug offense on occasions different from one
another, the base offense level increases to 33, with a
criminal history category of no less than IV, with a 15-year
mandatory minimum sentence under 18 U.S.C. § 924(e).
U.S.S.G. § 4B1.4(a)-(c). The Defendant does not agree
that he committed this offense after sustaining more than one
crime of violence or violent felony, but stipulates to the
sentence set forth in paragraph 8. With respect to §
924(e), this Office stipulates for purposes of this agreement
that at this time it does not possess sufficient
documentation to establish three prior predicate convictions
under the standards set forth in Shepard v. United
States, 544 U.S. 13 (2005).
and the Government agreed that the appropriate disposition of
the case was a sentence of 120 months. (ECF No. 18, ¶
8). The presentence report recommended finding that the base
offense level should be 24, based on two prior felony
convictions for crimes of violence, robbery and resisting
arrest. Petitioner's criminal history consisted of many
convictions, including quite a number of 1 point priors, and
reached 19 criminal history points, or Criminal History
Category VI. (Even without the now vacated resisting arrest
conviction, he still has 19 criminal history points.) The
plea agreement was accepted on June 14, 2011. (ECF No. 28).
The court adopted the parties' agreement and sentenced
Mr. Blake to 120 months. In the Statement of Reasons
accompanying the judgment, the court wrote: “The
parties agreed pursuant to Fed.R.Crim.P. 11(c)(1)(C) to a
sentence of 120 months. The government pointed out that the
defendant's 19 criminal history points are well above the
typical category VI offender and he narrowly avoids a
mandatory 15 year sentence. The defendant acknowledged his
poor criminal history as well.” (ECF No. 29 at 3.)
January 20, 2015, Petitioner moved for relief. (ECF No. 30). On
December 20, 2016, Petitioner through counsel filed a
supplemental motion to vacate arguing, in part, that because
one of Petitioner's prior convictions, for resisting
arrest, had been vacated, Petitioner's Guideline range
had changed and he was entitled to have his sentence vacated
and to be re-sentenced. (ECF No. 36). The Government responded,
arguing that the motion to vacate was untimely, that the
claim was procedurally defaulted, and that, regardless, the
claim was not cognizable because Petitioner was sentenced
pursuant to a C-Plea and not the Guidelines. (ECF No. 38).
Petitioner replied. (ECF No. 40). Petitioner moving pro
se also filed a motion to compel a decision from the
court. (ECF No. 43).
filed his initial motion years after his guilty plea, and the
Government argues it is untimely. (ECF No. 38, at 4-5).
Petitioner claims timeliness pursuant to 28 U.S.C. §
2255(f)(4), by arguing that the vacatur of the prior state
court conviction was a newly discovered fact and that
Petitioner had a year from that date to file a habeas
petition. (ECF No. 40, at 10).
U.S.C. § 2255(f)(4) provides that a habeas petition is
timely if filed within one year of “the date on which
the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.”
A state court order vacating a sentence is a
“fact” which can toll the statute of limitation.
Johnson v. United States, 544 U.S. 295, 302 (2005).
A petitioner is not automatically entitled to tolling of the
statute of limitations based on the vacating of a prior state
court conviction. Rather, a petitioner is only entitled to
tolling based on a subsequently vacated sentence if, after
the date the district court entered judgment, he acted
“diligently to obtain the state-court order vacating
his predicate conviction.” Id. at 310.
Government argues that Petitioner did not act diligently
because he failed to file the coram nobis petition
in the state court “until more than five years
after entry of judgment in the federal case[.]” (ECF
No. 38, at 5-6 (emphasis in original)). Petitioner's
response is complicated. He argues that Holmes v.
State, 401 Md. 429 (2007), initially precluded him from
seeking coram nobis relief because he had not filed
an application for leave to appeal his guilty plea timely. He
next argues that although the Holmes decision, and
thus the restriction on applying for coram nobis,
was overturned by statute in 2012, this restriction
“did not conclusively disappear until July 2015”
when the Court of Appeals of Maryland held, in State v.
Smith, 443 Md. 572 (2015), that the new law
“retroactively applies.” (ECF No. 40, at 17).
Petitioner concludes that because he filed for coram
nobis relief within a year of Smith, his
petition is timely. Petitioner's argument
mischaracterizes Holmes, fabricates a new legal
standard, and, otherwise, misses the point.
to Petitioner, Holmes “held that a defendant,
like [Petitioner], who did not file a leave for application
to appeal the validity of his guilty plea within 30 days of
the entry of the plea, waived his right to file a coram
nobis petition.” (ECF No. 40, at 17). In
Holmes, the Court of Appeals stated, “We hold
that if an individual who pleads guilty, having been informed
of his right to file an application for leave to appeal from
his conviction and sentence, does not file such an
application for leave to appeal, a rebuttable
presumption arises that he has waived the right to
challenge his conviction in a subsequent coram nobis
proceeding.” 401 Md. at 445-46 (emphasis added). This
presumption can be rebutted by showing that a petitioner was
not informed of his rights to challenge a conviction or
through “special circumstances.” Id. at
475. Petitioner has not alleged that this bar ever applied to
him, and, therefore, this case may not be relevant.
argument also assumes that a procedural barrier must
“conclusively disappear” before a petitioner
could be expected to file for relief. (ECF No. 40, at 17).
Petitioner cites no support for the use of this phrase, and
such a standard would fly in the face of the command that a
petitioner use “reasonable diligence in the
circumstances.” Gray v. Ballard, 848 F.3d 318,
322 (4th Cir. 2017) (internal quotation marks
omitted). It would seem reasonable ...