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Sterling v. United States

United States District Court, D. Maryland

November 1, 2018

SEAN STERLING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett, United States District Judge

         The Petitioner Sean Sterling (''Petitioner" or "Sterling") brings his second Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, pursuant to an Order from the United States Court of Appeals for the Fourth Circuit granting him authorization to file a second or successive § 2255 motion in light of the United States Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).[1] (ECF No. 443.) Also pending before this Court are numerous other Motions filed by the Petitioner, including Petitioner's Motion for Reconsideration of this Court's Memorandum Opinion and Order denying his prior Motion to Vacate Under 28 U.S.C. § 2255 (ECF No. 405), Motion for Relief from judgement Pursuant to Federal Rules of Civil Procedure 60(b)(5) and (6) (ECF No. 415), and Motion for Reconsideration of this Court's Memorandum Opinion and Order denying his Motion to Vacate Conviction under 28 U.S.C. §2241 (ECF No. 44l).[2]

         This Court has reviewed the parties' submissions, and finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Petitioner's Motion for Reconsideration of this Court's Memorandum Opinion and Order denying his prior Motion to Vacate Under 28 U.S.C. § 2255 (ECF No. 405) is DENIED; Petitioner's second Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 443) is DENIED; Petitioner's Motion for Relief from Judgement Pursuant to Federal Rule of Civil Procedure 60(b)(5) and (6) (ECF No. 415) is DENIED; and Petitioner's Motion for Reconsideration of Court's Opinion and Order denying the Motion to Vacate Conviction under 28 U.S.C. §2241 (ECF No. 441) is DENIED.

         BACKGROUND

         The complete background of this case is set forth in detail in this Court's two prior Memorandum Opinions denying Petitioner's Motions to Vacate. (ECF Nos. 403, 439; Sterling v. United States, Nos. RDB-06-0179, RDB-11-3209, 2013 WL 588973 (D. Md. Feb 13, 2013); Sterling v. N'Diaye, No. RDB-15-1338, 2016 WL 8715676 (D. Md. Jan. 22, 2016).) Briefly, Petitioner Sterling was charged along with six co-conspirators in a Fourth Superseding Indictment with two counts of possession of a firearm in furtherance of a drug trafficking crime resulting in death, in violation of 18 U.S.C. § 924 (Counts III and IV). (Judgment 1, ECF No. 264.)

         At trial, cooperating witnesses testified that Sterling participated in the May 28, 2001 murder of Kenyatta Harris and the June 26, 2001 murder of Angelo Stringfellow. Sterling and his accomplices, including Corey Smith, Perry Austin, and William DeShields, carried out the murders as part of a "contract" put on the lives of the victims by Jermaine Bell, a Baltimore drug dealer affiliated with the R & G drug organization, because of a "battle over some drug territory." The testimony of Corey Smith, Perry Austin, Linwood Smith, Detective Coleman, and William DeShields presented evidence that Sterling discussed the murder plan in advance of the crime, drove the shooters and the firearms to the murder scenes, helped locate Harris and Stringfellow, provided transportation away from the crime scene after the shootings, allowed the murder weapons to be stored in the sunroof of his silver Pathfinder truck before and after the crimes, and helped to dispose of the murder weapon after the Stringfellow murder.

         On December 3, 2008, after an eight-day jury trial, Sterling was found guilty on both counts of possession of a firearm in furtherance of a drug trafficking crime resulting in death, in violation of 18 U.S.C. § 924(j). (Verdict Form 1, ECF No. 238.) Subsequently, on February 19, 2009, this Court sentenced him to 264 months of imprisonment and five years of supervised release. (Judgment 2, ECF No. 264.) Petitioner, at times represented by counsel, filed numerous motions post-trial attacking both his conviction and sentence. As many of Sterling's now-pending Motions seek relief from judgment or reconsideration of this Court's prior opinions on those motions, the motions and this Court's rulings are described below.

         I. Petitioner's appeal to the Fourth Circuit

         First, Petitioner, represented by counsel, appealed his conviction to the United States Court of Appeals for the Fourth Circuit, arguing that "the evidence was insufficient to demonstrate that he possessed the weapons in furtherance of a heroin conspiracy." (ECF No. 266; United States v. Sterling, No. 09-4205, 401 Fed.Appx. 775 (4th Or. Nov. 12, 2010).) The Fourth Circuit affirmed, holding that the evidence was sufficient to support his convictions. (ECF Nos. 335, 336; Sterling, 401 Fed.Appx. 775.)

         II. Plaintiffs first Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255

         On November 9, 2011, Sterling, through different counsel, filed his first Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, arguing that (1) his trial counsel provided ineffective assistance of counsel in violation of the Sixth Amendment; (2) the government failed to disclose Brady evidence material; (3) the government lacked jurisdiction over the murders; and (4) the courtroom environment was inherendy prejudicial in violation of the Fourteenth Amendment. (ECF No. 372.) This Court denied the Motion on all four grounds. (ECF Nos. 403, 404; Sterling v. United States, Nos. RDB-06-0179, RDB-11-3209, 2013 WL 588973 (D. Md. Feb 13, 2013).) Subsequendy, the Petitioner filed a now-pending pro se Motion for Relief from Judgment of this Court's Memorandum Opinion and Order denying his Motion to Vacate Under 18 U.S.C. § 2255. (ECF No. 415.)

         III. Plaintiffs Motion to Vacate Under 28 U.S.C. § 2241

         Five months later, the Office of the Federal Public Defender ("OFPD") filed a Motion to Vacate Under 18 U.S.C. § 2241 on behalf of Petitioner, based on the Supreme Court's decision in Rosemond v. United States, 572 U.S. 65, 134 S.Ct. 1240 (2014). (ECF No. 426.) As background, to have convicted Sterling under 18 U.S.C. § 924(j), me Government had to prove that Sterling (1) was a member of the underlying drug conspiracy (conspiracy to distribute and possess with intent to distribute heroin), (2) possessed a firearm during, in relation, or in furtherance of that conspiracy, and (3) used the firearm to murder the victims or aided and abetted others in doing so. United States v. Reid, 523 F.3d 310, 318 (4th Cir. 2008). In Rosemond, the Supreme Court held that a person may only be convicted of aiding and abetting an offense for possessing, carrying, or using a firearm during and in relation to a drug trafficking crime when he had both advance knowledge (1) that a confederate will possess, carry, or use a gun during and in relation to the underlying crime and (2) that the underlying offense is a drug-trafficking crime. The OFPD argued that because this Court's instructions to the jury did not include an advanced knowledge requirement, as one was not required under the law at the time, Rosemond placed the conduct covered by this Court's jury instructions beyond the scope of the conduct made criminal by the statute, and therefore Sterling was convicted of a crime that was no longer criminal under 18 U.S.C. § 9240. (ECF No. 426.) In response, the Government argued that while this Court did not in fact instruct the jury on the advanced knowledge requirement-as it was not the law at the time- Sterling was not entitled to relief because the evidence presented during the trial clearly showed that he knew a gun would be used during the murders. (ECF No. 436.)

         This Court began by noting that although the Government conceded that Rosemond announced a substantive rule that was retroactively applicable to Sterling, this was an unresolved issue in which many United States District Courts had held that it did not create a "new rule."[3] (ECF Nos. 439, 440; Sterling v. N'Diaye, No. RDB-15-1338, 2016 WL 8715676, at *2 (D. Md. Jan. 22, 2016).) This Court then addressed the propriety of Petitioner bringing his Motion under § 2241 by means of 18 U.S.C. § 2255's Savings Clause because he previously filed a § 2255 motion which was denied. The Savings Clause provides that "when § 2255 proves 'inadequate or ineffective to test the legality of . . . detention,' a federal prisoner may seek a writ of habeas corpus pursuant to § 2241." In re]ones, 226 F.3d 328, 333 (4th Or. 2000) (citing 28 U.S.C.A. § 2255). A § 2255 motion is inadequate and ineffective when:

(1) at the time of conviction, settled law of this circuit or the Supreme Court established the legality of the conviction; (2) subsequent to the prisoner's direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which the prisoner was convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy the gatekeeping provisions of§ 2255 because the new rule is not one of constitutional law.

Id. at 333-34.

         This Court held that the Petitioner had not satisfied all the In re Jones requirements because the evidence introduced during Sterling's trial showed that he knew a gun would be using during the Harris and Stringfellow murders and therefore established his guilt under Rosemond. Sterling, 2016 WL 8715676, at *3. "Clearly, he aided and abetted the murder of two people and had 'advanced knowledge' that firearms would be used during the crime," and accordingly his conduct was illegal at the time of his conviction. Id. Subsequently, the OFPD filed the now-pending Motion for Relief from Judgment of that Opinion and Order, asserting that while this Court addressed whether Sterling knew the firearms would be used during the crimes, it did not address whether Sterling knew the crimes were drug-trafficking crimes. (ECF No. 441.)

         IV. Petitioner's second Motion to Vacate, Set Aside, or Correct Under 28 U.S.C. § 2255

         Finally, after the United States Supreme Court decided Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) on June 26, 2015, and struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii) as unconstitutionally vague, Sterling filed a motion to file a second § 2255 motion, pursuant to Rule 9 of the Rules Governing Section 2254 and 2255 Cases. The Fourth Circuit granted the motion on the ground that the new rule of constitutional law announced by the Supreme Court might perhaps apply to Sterling's case. (ECF No. 442.) Subsequently, the Petitioner filed his pro se second Motion to Vacate Under 18 U.S.C. § 2255 and two Motions to Amend. (ECF Nos. 443, 468, 477.) The Office of the Federal Public Defender did not join in Petitioner's Motion or otherwise file a Johnson motion on his behalf.

         STANDARD OF REVIEW

         As a pro se litigant, the Petitioner Sterling's pleadings have been "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). The Petitioner has filed several ...


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