Faraz v. United States

          MEMORANDUM OPINION

          ROGER W. TITUS UNITED STATES DISTRICT JUDGE.

         Petitioner Amir Ali Faraz (“Faraz”) has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“§ 2255 Motion” or “Motion to Vacate”). ECF No. 521. The Government has filed a Motion to Seal, ECF No. 523, and Faraz filed a Motion for Leave to File Out of Time, ECF No. 525. For the reasons discussed below, the Court will deny Faraz's § 2255 Motion, ECF No. 521, grant the Government's Motion to Seal, ECF No. 523, and grant Faraz's Motion for Leave to File Out of Time, ECF No. 525.

         I. Background Facts

         On December 12, 2012, a grand jury indicted eleven defendants, including Faraz, for a single count of conspiracy to distribute one kilogram or more of heroin, and 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846 (Count I). ECF No. 1. On November 13, 2013, a grand jury issued a Superseding Indictment to include additional charges as to Faraz. ECF No. 235. Faraz was charged with (1) possession with intent to distribute heroin (Counts Two and Four); (2) use of a communications facility in furtherance of a drug trafficking offense (Counts Three, Five, Six, and Eight), and (3) interstate travel with intent to promote drug trafficking activities (Count Seven). Id.

         On January 7, 2014, the Government filed a Notice/Information of Its Intention to Seek Enhanced Penalties Pursuant to 21 U.S.C. § 851 (“§ 851 Notice”). ECF No. 273. On January 24, 2014, a jury found Faraz guilty on all pertinent charges in the Superseding Indictment. ECF No. 290.

         On June 23, 2014, Faraz filed Objections to the Government's § 851 Notice, ECF No. 357, which the Government responded to on July 1, 2014, ECF No. 358. On July 7, 2014, the Court held a hearing and sentenced Faraz to the mandatory minimum sentence of 240 months of imprisonment on Count One; the statutory maximum sentence of 240 months of imprisonment on Count Two; 48 months of imprisonment on Counts Three, Four, Five, Six, and Eight; and 60 months of imprisonment on Count Seven. ECF No. 368. All sentences were to run concurrently. Id.

         Faraz timely appealed to the Court of Appeals for the Fourth Circuit, which affirmed his conviction on October 5, 2015. ECF No. 506. He then filed a petition for writ of certiorari with the U.S. Supreme Court, and on January 19, 2016, the Supreme Court denied certiorari. Faraz v. United States, 136 S.Ct. 913 (2016).

         Faraz timely filed his § 2255 Motion on January 19, 2017. ECF No. 521. On February 1, 2017, the Court ordered the United States to respond to Faraz's § 2255 Motion within 60 days of the Order, and allowed Faraz to reply within 28 days of the United States' response. ECF No. 522. The Government filed its timely Opposition and a Motion to Seal. ECF Nos. 523, 524. On May 2, 2017, Faraz filed a Motion for Leave to File Out of Time and attached his proposed Reply. ECF No. 525.

         II. Analysis

         The Court will first address Faraz's Motion for Leave to File Out of Time, and then it will dispose of his Motion to Vacate.

         a. Faraz's Motion for Leave to File Out of Time Due to Excusable Neglect Will Be Granted.

         Faraz was allowed to file a reply within twenty-eight days of the Government's Response. ECF No. 522. The Government's Response was filed on March 17, 2017, so Faraz's reply was due on April 14, 2017. On May 2, 2017, Faraz filed a Motion for Leave to File Out of Time, asking the Court for leave to file his reply out of time due to excusable neglect. ECF No. 525. Specifically, he argues that the institution where he is incarcerated was on lock down, and once the lock down was lifted, the law library was closed due to a staffing shortage. Id. ¶¶ 1-2. He avers that due to these circumstances, which were beyond his control, there is good cause to grant him leave. Id. ¶ 3.

         In determining whether excusable neglect has occurred, courts look at four factors: (1) danger of prejudice to the non-movant, (2) the length of delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993). The Fourth Circuit has noted that “inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute excusable neglect.” Thompson v. E.I. DuPont de Nemours & Co., 76 F.3d 530, 533 (4th Cir. 1996) (quoting Pioneer, 507 U.S. at 392).

         Considering Faraz's circumstances, the Pioneer factors weigh in his favor. Filing his Reply less than three weeks late did not have a significant impact on the proceedings nor did it prejudice the Government. Importantly, the reasons for the delay-that his institution was on lock down and the law library was closed-were beyond his control. Moreover, given that his Motion for Leave to File Out of Time was filed shortly after the deadline, it appears that he was acting in ...