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Liburd v. United States

United States District Court, D. Maryland

October 15, 2018

ANTONIO LIBURD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         On April 3, 2018, Petitioner Antonio Liburd filed a motion to vacate pursuant to 28 U.S.C. § 2255. ECF 20 ("Motion"). The government filed an opposition asserting, inter alia, that the motion is time-barred. ECF 29. Petitioner has filed a response (ECF 30), as well as a "Motion For Leave To Proceed." ECF 34; ECF 35.[1] He asserts, inter alia, that, in light of the Supreme Court's recent decision in Rosales-Mireles v. United States, ___ U.S. ___, 138 S.Ct. 1897 (2018), this court should reach the merits of his Motion.

         No hearing is necessary to decide this case. For the reasons stated below, the Motion must be dismissed as untimely.

         I. Background

         On July 13, 2011, Liburd was charged in an Information alleging that on or about March 25, 2011, he possessed with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). ECF 1. Liburd had his initial appearance and arraignment on July 29, 2011, at which time he entered a plea of guilty pursuant to a plea agreement. ECF 8; ECF 12 (Plea Agreement). In the Plea Agreement, the parties agreed that Liburd qualified as a career offender. ECF 12, ¶ 6. The plea was entered under Fed. R. Crim. P. 11(c)(1)(C), calling for a sentence of 151 months' incarceration.

         Liburd requested to proceed to sentencing immediately .following the Rule 11 hearing. See ECF 25 (Rule 11 Transcript) at 30. However, the court ordered a Presentence Report ("PSR") and issued an expedited sentencing order. ECF 14.[2]

         Sentencing was held on September 30, 2011. ECF 17. At sentencing, the court determined that Liburd was a career offender. ECF 27 (Sentencing Transcript) at 4. Liburd's sentencing guidelines range called for a period of imprisonment ranging from 151 to 181 months. ECF 19. In accordance with the C plea, Liburd was sentenced to 151 months' incarceration. ECF 18 (Judgment). He did not appeal his conviction or his sentence.

         As noted, on April 3, 2018, Liburd filed his Motion, pursuant to 28 U.S.C. § 2255. ECF 20. He alleges that his attorney was ineffective for failing to challenge a two-level sentence enhancement under U.S.S.G. § 2D1.1(b)(1) "for possession of a weapon in furtherance of a crime." Id. at 1; see Id. at 3. Liburd also asserts that his sentence "is procedurally and substantively in violation of his Fifth, Sixth and Fourteenth Amendment rights." Id. at 2-3. And, he seems to challenge his career offender designation. Id. at 2.

         This court issued an Order directing the government to respond to the § 2255 motion. ECF 21. The government filed an opposition (ECF 29), arguing, inter alia, that the Motion is barred by limitations and equitable tolling does not apply. Therefore, on June 25, 2018, the Court directed Liburd to provide grounds for his entitlement to equitable tolling. ECF 30.

         Liburd responded. ECF 33. In his response, he challenged the two-level increase to his offense level under § 2D 1.1(b)(1), in regard to the recovery of a firearm at his child's residence. Id. at 1. Then, he filed a "Motion For Leave To Proceed." ECF 34. The same submission was docketed again at ECF 35.

         As a threshold matter, the court will consider the timeliness of the Motion under 28 U.S.C. § 2255.

         II. Standard of Review

          Pursuant to 28 U.S.C. § 2255(f), a one-year period of limitation applies to a motion under this section. Under the provisions of 28 U.S.C. § 2255(f), the ...


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