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Fleming v. United States

United States District Court, D. Maryland

December 6, 2018

WILLE HERNANDEZ FLEMING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         On December 18, 2014, Petitioner Willie Hernandez Fleming (“Petitioner” or “Fleming”) pled guilty to one count of Conspiracy to Commit Hobbs Act Robbery in violation of 18 U.S.C. § 1951(a). (ECF No. 29.) On March 18, 2015, this Court sentenced Fleming to 137 months of imprisonment and three years of supervised release. (ECF No. 34.) Subsequently, Petitioner appealed his sentence, and the United States Court of Appeals for the Fourth Circuit affirmed. United States v. Fleming, 675 Fed.Appx. 311, 311-12 (4th Cir. 2017). Currently pending before this Court are Petitioner's Motions to Reduce Sentence (ECF Nos. 83 and 85), Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 99), Petitioner's Motion for Evidentiary Hearing (ECF No. 114), and Petitioner's Motion to Appoint Counsel (ECF No. 116.) For the following reasons, Petitioner's Motions to Reduce Sentence (ECF Nos. 83 and 85) are DENIED;[1] Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 is DENIED; Petitioner's Motion for Evidentiary Hearing (ECF No. 114) is DENIED;[2] and Petitioner's Motion to Appoint Counsel (ECF No. 116) is DENIED.

         BACKGROUND

         On August 26, 2014, a federal grand jury returned an indictment charging Petitioner with one count of knowingly possessing a firearm having been previously convicted of a crime punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. § 922(g)(1). (Indictment, ECF No. 1.) To assist with his defense against this charge, Petitioner retained private counsel. (ECF No. 4.) On December 18, 2014 the Government filed a Superseding Information charging him with Conspiracy to Commit Hobbs Act Robbery in violation of 18 U.S.C. § 1951(a). (ECF No. 23.) Petitioner pled guilty to this offense[3] pursuant to a Plea Agreement. (ECF No. 25.)

         In the Plea Agreement, Fleming admitted that he and another person agreed to commit, and in fact committed, armed robberies of patrons of the Maryland Live Casino located in Hanover, Anne Arundel County, Maryland. (Plea Agreement, Attachment A at 1.) The Agreement also memorialized the parties' sentencing calculations. In light of his prior convictions, the parties agreed that Fleming was a career offender and, accordingly, that the applicable offense level was 32 pursuant to United States Sentencing Guidelines (U.S.S.G.) § 4B1.1. (Plea Agreement 4.) Based on Fleming's acceptance of personal responsibility for his conduct, the Government agreed to a two-level reduction in Fleming's adjusted offense level. (Id. at 5.) The Government additionally agreed to a one-level reduction in recognition of the Petitioner's timely notification of his intention to plead guilty. (Id.) These reductions resulted in an offense level of 29. (Id.) The parties further stipulated that Fleming's Criminal History Category was VI pursuant to U.S.S.G. § 4B1.1(b) and because the defendant's criminal history resulted in thirteen or more criminal history points. (Id.) In light of these calculations, the parties agreed that the Government would be free to make a sentencing recommendation of 151-188 months. (Id.)

         On March 19, 2015, this Court conducted a sentencing hearing. (ECF No. 33.) During the hearing, the Fleming acknowledged that he had reviewed the Presentence Investigation Report (ECF No. 31) (sealed) about three or four times with his lawyer. (Sentencing Tr. 12:1-13, ECF No. 38) (sealed). His attorney acknowledged that the Defense had no corrections or objections to the report. (Id. at 12:21-23.) The Presentence Investigation Report indicated that Fleming had numerous prior convictions. In July 1995, he was convicted of attempted murder and sentenced to seven years imprisonment. (ECF No. 31, at 9.) In May 1996, he was convicted of robbery with a deadly weapon. (Id.) Petitioner had also been convicted of three drug-related offenses in April 1996, May 1996, and December 2011. (Id. at 9-10.) At the hearing, this Court independently reviewed Fleming's criminal history and noted his prior convictions for attempted murder, robbery, and drug-related offenses. (Sentencing Tr. 19:1-9.) This Court also noted that Fleming had been released from prison for 10 years prior to the 2011 drug offense. (Id. at 29:8-30:9.) Pursuant to U.S.S.G. §§ 4A1.3(b) and other provisions, this Court determined that a Criminal History Category IV and an offense level of 28 were more appropriate. (Id. at 29:23-30-9.) This resulted in an advisory guideline range of 110 to 137 months. (Id. at 30:6-9.) This Court imposed a sentence of 137 months, at the high end of this advisory guideline range, in light of the violent nature of the offense conduct in this case. (Judgment, ECF No. 34.)

         Petitioner has raised various post-plea challenges. On May 7, 2015, Fleming filed a pro se Motion to Reduce Sentence (ECF No. 41), which this Court denied. (ECF No. 64.) Subsequently, on November 3, 2015, he filed a Motion to withdraw his guilty plea (ECF No. 62) which this Court also denied. (ECF No. 63.) On appeal to the United States Court of Appeals for the Fourth Circuit, Petitioner's appointed appellate counsel certified that there were no meritorious grounds for appeal. Fleming, 675 Fed.Appx. at 311. Nevertheless, counsel questioned whether this Court complied with Rule 11 of the Federal Rules of Criminal procedure in accepting Petitioner's guilty plea, and whether Petitioner's sentence was reasonable. Id. On February 1, 2017 The Court of Appeals rejected Petitioner's arguments and affirmed the Judgment of this Court. Fleming, 675 Fed.Appx. at 311-12. Additionally, and in accordance with Andres v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), the Court reviewed the entire record and found no meritorious grounds for appeal.[4] Fleming, 675 Fed.Appx. at 312.

         Fleming has filed five motions pro se for this Court's consideration. Now pending before this Court are Petitioner's Motions to Reduce Sentence (ECF Nos. 83 and 85), Petitioner's Motion to Vacate Under 28 U.S.C. § 2255 (ECF No. 99), Petitioner's Motion for Evidentiary Hearing (ECF No. 114), and Petitioner's Motion to Appoint Counsel (ECF No. 116.)

         STANDARD OF REVIEW

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., No. 17-1249, __ Fed App'x __(4th Cir. Oct. 5, 2017) (citing Erickson for the proposition that “[p]ro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers”). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). “[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         The scope of a § 2255 collateral attack is far narrower than an appeal, and a “‘collateral challenge may not do service for an appeal.'” Foster v. Chatman, __U.S. __, 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, procedural default will bar consideration under § 2255 of any matters that “could have been but were not pursued on direct appeal, [unless] the movant show cause and actual prejudice resulting from the errors of which he complains.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).

         ANALYSIS

         I. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 99.)

         Fleming petitions this Court to vacate his sentence on two grounds. First, he contends that his counsel was ineffective for failing to object to his designation as a career offender. (Pet.'s Mem. 4-10, ECF No. 101.) Second, Petitioner argues that he was “actually innocent” of the predicate offenses forming the basis for his career offender designation. (Id. at 10-11.) Petitioner has failed to show that his counsel's performance was deficient or that he is ...


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