United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
October 13, 2016, Petitioner Arnold Studivant
("Studivant" or 'Petitioner") pled guilty
to one count of conspiracy to distribute and possess with the
intent to distribute 100 grams or more of heroin, in
violation of 21 U.S.C. § 846. (Plea Agreement, ECF No.
99; Judgment, ECF No. 108.) On December 21, 2016, Judge J.
Frederick Motz of this Court sentenced Petitioner to sixty
(60) months imprisonment, followed by supervised release for
a term of forty-eight (48) months. (ECF No. 108.)
pending before this Court is Petitioner's Motion to
Vacate, Set Aside, or Correct . Sentence pursuant to 28
U.S.C. § 2255. (ECF No. 145.) The parties'
submission have been reviewed and no hearing is necessary.
See Local Rule 105.6 (D. Md. 2018). For the reasons
stated herein, Petitioner Studivant's Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 (ECF No. 145) is DENIED.
April 8, 2015, a federal grand jury in Maryland returned an
indictment charging Petitioner Studivant with one count of
conspiracy to distribute and possess with the intent to
distribute 100 grams or more of heroin, in violation of 21
U.S.C. § 846. (ECF No. 1.) According to the statement of
facts set forth in the Plea Agreement agreed to and signed by
Petitioner, beginning on or about June 1, 2014, and
continuing through September 2014, Studivant conspired with
others to distribute quantities of heroin in Baltimore,
Maryland. (ECF No. 99.) On several occasions, Studivant would
meet with co-conspirators, and others, to obtain quantities
of heroin and then distribute that heroin to his street
distributors and to his own personal use customers.
this time, law enforcement officials began investigating
Studivant's drug dealing. The Drug Enforcement Agency
("DEA") obtained authorization to intercept the
wire and electronic communications of Petitioner and one of
his co-conspirators, Brian McClurkin. (Id.)
Subsequently, Petitioner was intercepted discussing the
distribution of heroin and a firearm. (Id.) On
August 27, 2014, members of the Baltimore Police Department
("BPD") and members of the DEA conducted undercover
purchases of heroin from Petitioner's co-conspirators.
(Id.) Two BPD officers succeeded in purchasing two
separate units of heroin. During the purchases, another
co-conspirator, Phillip Vaughn, brandished a firearm.
(Id.) Following the arrests of Petitioner's
co-conspirators, additional quantities of heroin and a
firearm were recovered. (Id.)
to the Plea Agreement, Studivant and the government
stipulated that the applicable base offense level under the
United States Sentencing Guidelines was at least twenty-four
(24) because during the course of the conspiracy, Studivant
conspired to distribute and possess with the intent to
distribute at least 100 grams but less than 400 grams of
heroin. (Id) See U.S.S.G. § 2D1.1(c)(8). The
parties further stipulated that the base offense level would
increase by two, to a level of twenty-six (26), because
during the conspiracy a firearm was brandished. (Id)
See U.S.S.G. § 2D1.1(b)(1) (promulgating that
"if a dangerous weapon (including a firearm) was
possessed, increase [offense level] ¶ 2 levels.").
Finally, the parties stipulated that Petitioner's
criminal history category was III. (Id.) On December
21, 2016, Judge J. Frederick Motz of this Court sentenced
Studivant to sixty (60) months imprisonment followed by
supervised release for a term of forty-eight (48) months.
(Judgment, ECF No. 108.)
October 18, 2018, Studivant filed the pending Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255, arguing that his counsel fraudulently induced him to
accept a plea agreement on the promise that he would be
eligible for a one-year time credit upon completion of the
Bureau of Prison's ("BOP") Residential Drug
Abuse Program ("RDAP") Program. (ECF No. 145). The
Government's Response (ECF No. 149) contended, inter
alia, that the petition was untimely because it had been
filed over one year after the predicate Judgment became final
on January 4, 2017. On December 27, 2018, this Court issued
an Order (ECF No. 150) advising the Petitioner that his
Motion would be dismissed as untimely unless he provided a
response within 28 days demonstrating that he met an
exception to the one-year statute of limitations, or that he
was entided to equitable tolling. Petitioner did not meet
this deadline. Instead, on January 29, 2019, Studivant
appealed to the United States Court of Appeals for the Fourth
Circuit, mischaracterizing this Court's grant of
additional time as a denial of his § 2255 Motion. (ECF
No. 152.) Noting that Petitioner's Motion was still
pending in this Court, the Fourth Circuit dismissed the
appeal. (ECF No. 155.)
Court recognizes that Petitioner is pro se and has
accorded his pleadings liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v.
Yadkin County Sheriff Dept., No. 17-1249, 698 Fed
App'x 141, 142 (4th Cir. Oct. 5, 2017) (per curiam)
(unpublished) (citing Erickson for the proposition
that "[p]ro se complaints and pleadings, however
inartfully pleaded, must be liberally construed and held to
less stringent standards than formal pleadings drafted by
lawyers"). Under 28 U.S.C. § 2255, a prisoner in
custody may seek to vacate, set aside or correct his sentence
on four grounds: (1) the sentence was imposed in violation of
the Constitution or laws of the United States, (2) the court
was without jurisdiction to impose the sentence, (3) the
sentence was in excess of the maximum authorized by law, or
(4) the sentence is otherwise subject to a collateral attack.
Hill v. United States, 368 U.S. 424, 426-27, 82
S.Ct. 468 (1962) (citing 28 U.S.C. § 2255). "[A]n
error of law does not provide a basis for collateral attack
unless the claimed error constituted 'a fundamental
defect which inherently results in a complete miscarriage of
justice.'" United States v. Addonizio, 442
U.S. 178, 185, 99 S.Ct. 2235 (1979) (quoting Hill,
368 U.S. at 428, 82 S.Ct. 468).
scope of a § 2255 collateral attack is far narrower than
an appeal, and a "'collateral challenge may not do
service for an appeal.'" Foster v. Chatman,
136 S.Ct. 1737, 1758 (2016) (quoting United States v.
Frady, 456 U.S. 152, 165, 102 S.Ct. 1584 (1982)). Thus,
procedural default will bar consideration under § 2255
of any matters that "could have been but were not
pursued on direct appeal, [unless] the movant show cause and
actual prejudice resulting from the errors of which he
complains." United States v. Pettiford, 612
F.3d 270, 280 (4th Or. 2010) (citing United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
Petitioner's Motion is Untimely.
Petitioner's Motion is barred by the ...