United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
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; 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; and Petitioner's Motion to Appoint
Counsel (ECF No. 116) is DENIED.
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 pursuant to a
Plea Agreement. (ECF No. 25.)
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.
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.)
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. Fleming, 675 Fed.Appx. at 312.
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.)
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).
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)).
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255 (ECF No.
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 ...