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Bates v. United States

United States District Court, D. Maryland

February 4, 2019

MARLOW BATES Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          Ellen Lipton Hollander United States District Judge

         Marlow Bates entered a plea of guilty on August 8, 2014, to Count One of an Indictment charging conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. ECF 313. He was sentenced on February 5, 2015, to a term of 120 months' incarceration. ECF 438. That sentence corresponded to the statutory mandatory minimum. Notably, it was considerably less than the 162 months of incarceration sought by the government. See ECF 535 at 3. And, it was well below the advisory guidelines range, which called for a sentence ranging between 262 and 327 months of imprisonment. See ECF 439.

         On March 12, 2018, Bates, who is now self-represented, filed a Motion To Vacate, Set Aside or Correct Sentence, pursuant to 28 U.S.C. § 2255. ECF 596 (the “Petition”). The Petition, which exceeds 40 pages, alleges, among other things, that the Court abused its discretion in “branding” him as a career offender. Id. at 4.

         The government filed a response in opposition. ECF 598. It contends that the Petition is both untimely and without merit.

         In response to the government's opposition, the Court issued an Order (ECF 600) dated May 15, 2018 (ECF 600), noting the government's claim that the Petition is untimely. In the Order, the Court invited Bates to provide the Court with information to establish the timeliness of his Petition under 28 U.S.C. § 2255(f) or his entitlement to equitable tolling of the statute of limitations. Moreover, the Court granted Bates 28 days from the date of the Order to provide the Court with additional information.

         Bates did not respond to those inquiries. See Docket. But, on January 2, 2019, he filed a Motion for Brady Material (ECF 634); a motion to proceed in forma pauperis (ECF 635); and a motion for counsel. ECF 636.

         In reviewing the Petition, the Court is mindful that a self-represented litigant is generally “held to a ‘less stringent standard' than is a lawyer, and the Court must liberally construe his claims, no matter how ‘inartfully' pled.” Morrison v. United States, RDB-12-3607, 2014 WL 979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of self-represented litigants are held “to less stringent standards than formal pleadings drafted by lawyers”); Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 Fed.Appx. 332, 334 (4th Cir. 2013) (same).

         Under 28 U.S.C. § 2255(b), the Court must hold a hearing “[u]nless the motion and the files and records conclusively show that the prisoner is entitled to no relief . . . .” See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). This is such a case. No. hearing is necessary.

         For the reasons that follow, I shall dismiss the Petition as untimely. And, I shall deny ECF 634, ECF 635, and ECF 636.

         I. Procedural Background

         As noted, on August 8, 2014, Bates entered a plea of guilty to Count One of an Indictment charging him with conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846. ECF 313. Under the terms of the Plea Agreement (ECF 314), entered under Fed. R. Crim. P. 11(c)(1)(C), the parties agreed to a sentence ranging between 120 and 162 months of imprisonment. ECF 314 (Plea Agreement), ¶ 9. Notably, the offense carried a mandatory minimum term of imprisonment of 120 months (i.e., 10 years), with a maximum period of incarceration of life imprisonment. Id. ¶ 3.

         Sentencing was held on February 5, 2015. At sentencing, the government sought a term of incarceration of 162 months, which was the top of the C plea range. ECF 535 (Transcript) at 3. Moreover, the advisory sentencing guidelines range called for a period of incarceration ranging between 262 and 327 months. See ECF 440 (Amended Presentence Report). The sentencing range was based on a final offense level of 34 and a criminal history category of VI. Id. ¶¶ 32, 39. In turn, the final offense level and criminal history category were based on the Court's determination that Bates qualified as a career offender under U.S.S.G. § 4B1.1. See ECF 535 at 6-8. Nevertheless, even if the Court had found that Bates was not a career offender, the Court was statutorily required to impose a sentence of at least 120 months.

         The Court sentenced Bates to the mandatory minimum term of incarceration of 120 months. ECF 438 (Judgment). See 21 U.S.C. § 841(b)(1)(A). That also corresponded to the bottom of the C plea range. No. appeal was filed by Bates. See Docket.

         In his Petition, Bates seeks, inter alia, resentencing based on an offense level of 27 and a criminal history category of IV. ECF 596 at 12. That corresponds to the offense level and criminal history category if Bates had not been a career offender. According to Bates, he is no longer a career offender under Johnson v. United States, ...


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