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Proctor v. United States

United States District Court, D. Maryland

January 9, 2019

JOHN RICHARD PROCTOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROGER W. TITUS, UNITED STATES DISTRICT JUDGE

         On January 6, 2005, Petitioner John Richard Proctor (“Proctor”) pled guilty to one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841, and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Proctor has now petitioned under 28 U.S.C. § 2255 (“§ 2255 Motion”) to set aside the judgment and correct his sentence primarily based on the decision in Johnson v. United States, 135 S.Ct. 2551 (2015). ECF No. 101.

         BACKGROUND

         The Presentence Report (“PSR”) in Proctor's case identified a lengthy criminal history, including a 1986 felony assault with intent to prevent lawful apprehension conviction in Maryland. The PSR recommended a sentence of 360 months, based on a criminal history category of VI and a final offense level of 38, which equates to a guideline range of 360 months to life imprisonment.

         At his sentencing on April 8, 2005, this Court determined that Proctor was an armed career criminal based on three qualifying prior convictions and also a career offender based on two qualifying prior convictions. Proctor was sentenced to a concurrent term of 324 months' imprisonment. ECF No. 45.

         On October 5, 2007, Proctor filed a Motion to Vacate Under 28 U.S.C. § 2255, which this Court denied on December 9, 2008. ECF Nos. 56, 66. Proctor appealed the denial of his § 2255 Motion, and on July 30, 2009, the Fourth Circuit denied the certificate of appealability and dismissed Proctor's appeal. ECF No. 74.

         On January 20, 2011, this Court reduced Proctor's sentence to 292 months based on 18 U.S.C. § 3582(c) and retroactive Amendment 706 to the U.S. Sentencing Guidelines. ECF No. 88.

         On April 29, 2016, Proctor filed a motion for authorization to file a successive § 2255 motion, which the Fourth Circuit granted. ECF No. 100. Proctor filed the instant § 2255 Motion on May 26, 2016. ECF No. 101. The Government responded in opposition on January 19, 2017, ECF No. 102, and Proctor replied in support of his Motion on January 27, 2017, ECF No. 103. On February 10, 2017, the Government filed a Motion for Leave to File Surreply, which the Court granted. ECF Nos. 104, 105. On February 28, 2017 and March 14, 2017, Proctor submitted supplemental authority in support of his Motion. ECF Nos. 106, 108. On March 13, 2017, the Government filed its Surreply, ECF No. 107, and on April 25, 2018, the Government filed supplemental authority in support of its Response, ECF No. 109. Proctor responded to the Government's April 25, 2018 submission on July 5, 2018. ECF No. 111. The Government then filed a supplemental response on November 9, 2018, ECF No. 112, which Proctor responded to on December 7, 2018, ECF No. 113.

         DISCUSSION

         Under 28 U.S.C. § 2255, a petitioner must prove by a preponderance of the evidence 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.” 28 U.S.C. § 2255 (2012); see also Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). If the § 2255 motion, along with the files and records of the case, “conclusively show that [he] is entitled to no relief, ” a hearing on the motion is unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255. In challenging his armed career offender status, Proctor primarily argues that his conviction of assault with intent to prevent lawful apprehension does not qualify as a “violent felony” under the “force” clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(i). ECF No. 101 at 2. The Court finds that this argument does not have a legal basis.

         I. Proctor's Maryland conviction of assault with intent to prevent lawful apprehension qualifies as a “violent felony” under the ACCA's “force” clause.

         Proctor argues that his career offender status is improper because his prior conviction of assault with intent to prevent lawful apprehension is not a “violent felony” because it can be accomplished without the use or threat of violent physical force. Id. at 7. In support of his argument, Proctor cites to United States v. Royal, 731 F.3d 333 (4th Cir. 2013), where the Fourth Circuit held that Maryland second-degree assault fails to qualify as an ACCA “violent felony” because it reaches any unlawful touching, whether violent or nonviolent. ECF No. 101 at 8 (citing Royal, 731 F.3d at 342). He argues that the additional element of intent to prevent lawful apprehension does not convert assault into a “crime of violence.” Id. Proctor also relies on Barrios v. State, 702 A.2d 961 (Md. Ct. Spec. App. 1997), where the defendants' conviction of assault with intent to prevent lawful apprehension was upheld based on the defendants pushing others in a crowd into officers. ECF No. 101 at 8 (citing Barrios, 702 A.2d at 970). He avers that because assault with intent to prevent lawful apprehension encompasses such broad conduct, it fails to qualify as a “violent felony.” Id. at 8-9.

         The Government counters that the Maryland crime of assault with intent to prevent lawful apprehension requires an assault or beating and also requires that the assault or beating be committed “with intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained.” ECF No. 102 at 4-5 (quoting Barrios, 702 A.2d at 969). Moreover, in response to Proctor's argument that the additional element of intent does not convert the crime into one of violence, the Government contends that had the state legislature intended for the crimes to be the same, it would not have created the separate crime of assault with intent to prevent lawful apprehension. Id. at 5.

         In support of its argument, it cites to Sangster v. State, 521 A.2d 811 (Md. Ct. Spec. App. 1987), where the court deemed assault with intent to prevent lawful apprehension a “form of aggravated assault” and thus a crime of violence for the purposes of establishing the crime of use of a handgun in the commission of a crime of violence. ECF No. 102 at 5 (citing Sangster, 521 A.2d at 821). The Government also draws the Court's attention to a number of cases involving convictions of assault with intent to prevent lawful apprehension based on defendants shooting, hitting, pushing, and driving vehicles into officers. Id. at 6 (citing Barrios, 702 A.2d at 970 (defendant pushed into crowd that was pushing against officers); Claggett v. State, 670 A.2d 1002, 1004 (Md. Ct. Spec. App. 1996) (defendant drove car into storeowner); Hall v. State, 516 A.2d 204, 209 (Md. Ct. Spec. App. 1986) (fleeing defendant fired shots at officers); Savoy v. State, 494 A.2d 957, 959, 961 (Md. Ct. Spec. App. 1985) (defendant accelerated car into officer)). Lastly, the ...


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