United States District Court, D. Maryland
L. Hollander United States District Judge.
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. 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
hearing is necessary to decide this case. For the reasons
stated below, the Motion must be dismissed as untimely.
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.
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.
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
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.
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.
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.
threshold matter, the court will consider the timeliness of
the Motion under 28 U.S.C. § 2255.
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 ...