United States District Court, D. Maryland
L. Hollander United States District Judge.
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.
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.
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).
was held on April 29, 2005. See Docket. Judge J.
Frederick Motz, to whom the case was then assigned,
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).
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).
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. 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).
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.
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).
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
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.
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.
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