United States District Court, D. Maryland
L. Hollander, United States District Judge
Memorandum addresses the Rule 60(b)(5) motion (the
“Motion” or the “Petition”) filed by
Petitioner Rolando Stockton on January 23,
2018. ECF 627. Stockton, who is
self-represented, seeks to vacate the Memorandum and Order of
Judge Marvin Garbis entered July 5, 2012 (ECF 570), denying
Stockton's Motion to Vacate filed under 28 U.S.C. §
2255. See ECF 530; ECF 531. The government has filed a
response in opposition. ECF 628. Stockton has replied. ECF
hearing is necessary to resolve the Motion. For the reasons
that follow, I shall deny the Motion.
Factual and Procedural Background
was charged with multiple offenses in a Superseding
Indictment filed on August 19, 1999. ECF 33. A Fifth
Superseding Indictment was filed on April 17, 2001. On May
30, 2001, following a jury trial, Stockton was convicted of
conspiracy to distribute and possess with intent to
distribute heroin, in violation of 21 U.S.C. § 846; use
of a firearm in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c); and being a felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1). ECF 394.
sentencing on January 15, 2002 (see Docket), Judge
Garbis departed downward, over government objection, from a
guideline sentence of 480 months' incarceration.
See ECF 570 at 2. It appears that Judge Garbis
thought that Stockton's career offender designation under
U.S.S.G. § 4B1.1 overstated his criminal history.
Instead, he sentenced Stockton to an aggregate sentence of
330 months' imprisonment. See ECF 421 (Judgment
docketed January 28, 2002). As the government observes, this
was a “departure of 150 months.” ECF 628 at 2.
noted an appeal to the Fourth Circuit. ECF 422. The
government filed a cross appeal as to the sentence (ECF 427),
challenging the 150-month downward departure. On November 17,
2003, the Court of Appeals for the Fourth Circuit affirmed
Stockton's conviction, but reversed the District
Court's decision to depart downward based on an
over-representation as to the career offender designation.
See ECF 464; see also United States v.
Stockton, 349 F.3d 755 (4th Cir. 2003). The Court said,
id. at 765: “Rolando Stockton is exactly the
type of person to whom the career offender classification is
intended to apply.” The Fourth Circuit remanded for a
new sentencing, with instructions to apply the career
Garbis resentenced Stockton on March 12, 2004. See
Docket. An Amended Judgment was entered on April 1, 2004,
reflecting a total term of imprisonment of 480 months'
incarceration. ECF 465.
January 5, 2006, Stockton filed a motion to vacate under 28
U.S.C. § 2255. ECF 494. In a Memorandum and Order of
July 13, 2006 (ECF 501), Judge Garbis denied the Motion as
time barred. The Court later denied (ECF 504) Stockton's
Motion to alter or amend. See ECF 503. But, in a
Memorandum and Order of September 15, 2006 (ECF 509), Judge
Garbis authorized the filing of an appeal, nunc pro tunc,
from the resentencing held on March 12, 2004. The Fourth
Circuit dismissed the appeal on July 20, 2007. ECF 518;
see United States v. Stockton, 240 Fed. App'x
601 (4th Cir. 2007).
through court-appointed counsel (ECF 524), Stockton filed an
amended § 2255 petition. See ECF 530; ECF 531.
And, in a Memorandum and Order of June 19, 2004 (ECF 540),
Judge Garbis rescinded his ruling in ECF 501, finding that
Stockton's attorney had failed to file a timely §
2255 motion, despite the Court's direction to do so.
motion hearing was held on August 20, 2009. ECF 547. Other
hearings were held on May 6, 2011 (ECF 557) and July 19,
2011. ECF 561. In a comprehensive, 35-page Memorandum and
Order of July 5, 2012, Judge Garbis denied the § 2255
petition on the merits. ECF 570.
then noted an appeal to the Fourth Circuit. ECF 572. That
Court affirmed in an unpublished, per curiam opinion issued
on November 20, 2013. ECF 596. The Court rejected the claim
of ineffective assistance of counsel in connection with two
pre-trial plea offers. The mandate issued on January 13,
2014. ECF 597.
orders of March 1, 2017 (ECF 624) and June 21, 2017 (ECF
626), Judge Garbis denied Stockton's motions for
reduction of sentence and for modification of sentence.
See ECF 602; ECF 623. The Rule 60(b)(5) Motion now
at issue followed on January 23, 2018. ECF 627. In it,
Stockton seeks to vacate the Court's Memorandum and Order
of July 5, 2012 (ECF 570), denying his § 2255 motion.
Petition at issue, Stockton claims that he is entitled to
relief because of a change in the law. He relies on the
Fourth Circuit's decision in United States v.
Davis, 720 F.3d 215 (4th Cir. 2013). In its opposition,
the government contends that the Motion is subject to
dismissal as a successive ...