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Thomas v. United States

United States District Court, D. Maryland

February 5, 2019

LENDRO MICHAEL THOMAS Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         Lendro Thomas, Petitioner, filed a petition under 28 U.S.C. § 2255(f)(3). ECF 178. The government opposes the Petition. ECF 180. Thomas did not reply.

         No hearing is necessary to resolve the Petition. See 28 U.S.C. § 2255(b). For the reasons that follow, I shall dismiss the Petition, without prejudice.

         I. Background

         On June 16, 2004, a jury in the District of Maryland convicted Thomas of the following offenses: possession with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 841(a)(1); distribution of heroin, in violation of 21 U.S.C. § 841(a)(1); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g).

         Sentencing was held on April 29, 2005. See Docket. Judge J. Frederick Motz, to whom the case was then assigned, [1] determined that Petitioner's two prior Maryland convictions for robbery with a deadly weapon, one in 1983 and the other in 1992, qualified as crimes of violence for purposes of the career offender provisions of the United States Sentencing Guidelines (“U.S.S.G.”). Judge Motz sentenced Thomas to concurrent terms of 144 months' imprisonment as to Counts One, Two, and Four, and to a mandatory, consecutive term of 60 months imprisonment as to Count Three, for a total sentence of 204 months (17 years) imprisonment. ECF 61 (Judgment).

         On direct appeal, Thomas argued, inter alia, that the district court erred in sentencing him as a career offender. The Fourth Circuit disagreed and upheld Petitioner's convictions and sentence. United States v. Thomas, 189 Fed.Appx. 219, 225 (4th Cir. 2006) (per curiam).

         Petitioner filed a motion to vacate under 28 U.S.C. § 2255 on October 9, 2007 (ECF 78), supported by a memorandum of law. ECF 79.[2] By Memorandum and Order of April 30, 2008, Judge Motz denied that motion, and granted a Certificate of Appealability. ECF 92. On January 5, 2009, the United States Court of Appeal for the Fourth Circuit affirmed the District Court. ECF 93; see United States v. Thomas, 305 Fed. App'x 960 (4th Cir. 2009).

         Then, on May 2, 2011, Thomas filed another motion to vacate, pursuant to 28 U.S.C. § 2255. ECF 109. In a Memorandum and Order of May 16, 2011, Judge Motz denied the petition as an unauthorized successive petition. ECF 110; ECF 111. Thomas moved for a Certificate of Appealability. ECF 115. By Order of June 21, 2011, Judge Motz denied that motion. ECF 116.

         Thomas noted an appeal to the Fourth Circuit. ECF 112. And, by judgment of October 5, 2011, the Fourth Circuit denied the Certificate of Appealability and dismissed the appeal. ECF 119; see United States v. Thomas, 448 Fed. App'x 410 (4th Cir. 2011).

         On March 20, 2014, Petitioner filed yet another § 2255 petition. ECF 155. He challenged the career offender level used to sentence him, claiming that his 1983 Maryland conviction for robbery with a deadly weapon was improperly used as a predicate offense for enhancement of his federal sentence under the career offender guidelines. To support his claim that his sentence should be vacated and that he should be resentenced without the career offender enhancement, Petitioner relied on the Supreme Court's decision in Descamps v. United States, 570 U.S. 254 (2013). By Memorandum and Order of March 31, 2014, Judge Motz dismissed Petitioner's § 2255 petition without prejudice, based on Petitioner's failure to comply with the procedural conditions set out by 28 U.S.C. § 2244 for a second or successive § 2255 petition. ECF 156; ECF 157. Judge Motz also declined to issue a certificate of appealability.

         Petitioner filed a fifth § 2255 motion on June 21, 2016. ECF 170. He supplemented it on July 12, 2016. ECF 171. That motion was dismissed upon request of defense counsel on February 26, 2018. ECF 172; ECF 173.

         On August 27, 2018, Petitioner filed a pro se Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF 178), which is now pending. He again challenges the validity of his sentence, asserting that his Maryland conviction for robbery with a deadly weapon was improperly used as a predicate crime of violence for purposes of the career offender enhancement. Id.

         Thomas contends that he is entitled to relief pursuant to the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). According to Thomas, his conviction in 1983 under former Article 27, § 488 of the Maryland Annotated Code, for robbery with a deadly weapon, was rendered ineligible for sentencing enhancement purposes because Johnson and Dimaya invalidated the ...


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