United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
Gilyard, the self-represented Petitioner, was charged in a
one-count Indictment on August 20, 2014, with the offense of
possession of a firearm by a prohibited person, in violation
of 18 U.S.C. § 922(g)(1). ECF 1. Pursuant to a Plea
Agreement (ECF 45), Gilyard entered a plea of guilty on
August 13, 2015, before Judge William D. Quarles, Jr., to
whom the case was then assigned. ECF 44. The plea was
entered under Fed. R. Crim. P. 11(c)(1)(C), by which the
parties agreed to a sentence of imprisonment ranging between
71 and 84 months. See ECF 45, ¶ 9.
Plea Agreement, the parties stipulated that defendant
committed the underlying offense subsequent to two felony
convictions for either a crime of violence or a controlled
substance offense. ECF 45, ¶ 6(b). Therefore, he had a
base offense level of 24, before deductions. However, the
parties disputed whether defendant was subject to a two-level
enhancement under U.S.S.G. § 2K2.1(b)(4), on the basis
that the firearm was stolen.
was held on October 13, 2015. In accordance with the Plea
Agreement, Judge Quarles imposed a sentence of 78 months'
imprisonment. ECF 53. The judgment was entered on October 21,
2015. ECF 55. The Statement of Reasons reflected a final
offense level of 23. ECF 56. Judge Quarles found that the
advisory sentencing guidelines called for a period of
incarceration ranging between 70 and 87 months. Id.
at 1. Gilyard did not note an appeal.
7, 2018, Gilyard filed a motion to vacate his sentence,
pursuant to 28 U.S.C. § 2255. ECF 58 (the
“Petition”). He argues that the District Court
erred in calculating his advisory sentencing guideline range
because, in doing so, it relied on a prior Maryland
conviction for the offense of attempted robbery with a deadly
weapon. Gilyard claims that the Court erroneously found that
the attempted robbery constituted a crime of violence.
However, there is no indication that Judge Quarles found
defendant to be a Career Offender.
government opposes the Petition. ECF 65. It argues that the
Petition is untimely.
resolving the Petition, I am mindful that a self-represented
litigant is generally “held to a ‘less stringent
standard[ ]' than is a lawyer, and the Court must
liberally construe his claims, no matter how
‘inartfully' pled.” Morrison v. United
States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar.
12, 2014) (internal citations omitted); see Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972) (stating that claims of
self-represented litigants are held “to less stringent
standards than formal pleadings drafted by lawyers”);
Bala v. Commonwealth of Va. Dep't of Conservation
& Recreation, 532 Fed.Appx. 332, 334 (4th Cir. 2013)
(per curiam) (same).
28 U.S.C. § 2255(b), a hearing is required
“[u]nless the motion and the files and the records of
the case conclusively show that the prisoner is entitled to
no relief . . . .” See United States v.
LeMaster, 403 F.3d 216, 220-23 (4th Cir. 2005). This is
such a case; no hearing is necessary.
reasons that follow, I shall deny the Petition.
to 28 U.S.C. § 2255(a), a prisoner in federal custody
may “move the court which imposed the sentence to
vacate, set aside or correct the sentence, ” but only
on certain grounds: “that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack. . . .” See also United States v.
Newbold, 791 F.3d 455, 459 (4th Cir. 2015).
attack is not a substitute for direct appeal; failure to
raise certain issues on direct appeal may render them
procedurally defaulted on post-conviction review. United
States v. Frady, 456 U.S. 152, 165 (1982); accord
Bousely v. United States, 523 U.S. 614, 630 (1998). As a
general rule, a petitioner who fails to raise a claim on
direct appeal is barred from raising the claim on collateral
review. Sanchez-Llamas v. Oregon, 548 U.S. 331,
350-51 (2006). However, this bar generally does not apply to
claims pertaining to ineffective assistance of counsel.
See, e.g., Massaro v. United States, 538
U.S. 500, 503-04 (2003).
government claims that the Petition was untimely filed, and
is barred by the one-year period of limitations applicable
under 28 U.S.C. § 2255(f). That limitations period runs
from the latest of: (1) the date on which the conviction
became final; (2) the date on which an “impediment to
making a motion created by government action” is
removed, if the movant was prevented from making his motion
by government action that was in violation of the
Constitution or law; (3) the date on which the right asserted
was recognized by the Supreme Court, if that newly-recognized
right has been made retroactive to cases on collateral
review; or (4) the date on which the facts supporting the
claims could have become known through the exercise of due
indicated, the Judgment was entered on October 21, 2015.
See ECF 55. Under Fed. R. App. P. 4(b)(1)(A), a
notice of appeal must be filed within fourteen days of entry
of the Judgment. Petitioner did not note an appeal.
Accordingly, petitioner's conviction became final on
November 4, 2015. In other words, his conviction became final
after the ...