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Blake v. United States

United States District Court, D. Maryland

September 28, 2018

KEVIN LYNN BLAKE
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently 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).[1] 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.

         I. Background

         Petitioner 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 20, [2] 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.

         With 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).

         Petitioner 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.)

         On January 20, 2015, Petitioner moved for relief.[3] (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).[4] 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).

         II. Timeliness

         Petitioner 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).

         28 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.

         The 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.

         According 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.

         Petitioner's 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 ...


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