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Redd v. United States

United States District Court, D. Maryland

June 20, 2019

TAFT REDD Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE

         Petitioner Taft Redd ("Petitioner" or "Redd") is serving a 120-month sentence in the custody of the United States Bureau of Prisons ("BOP") after pleading guilty before this Court to conspiracy to one count of Hobbs Act, Robbery, in violation of 18 U.S.C. § 1951. (Indictment, ECF No. 1; Plea Agreement, ECF No. 17; Judgment, ECF No. 25.) Pending before this Court is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C § 2255, arguing that his sentence was improperly enhanced because Hobbs Act Robbery is not a crime of violence. (ECF No. 32.) Redd contends that his sentence is unlawful in Hght of United States v. McCollum, 885 F.3d 300 (4th Ck. 2018), Matbis v. United States, 136 S.Ct. 2243 (2016), and Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276 (2013). Also pending are Petitioner's Motion for Attorney Representation (ECF No. 33), and Petitioner's Motion Pursuant to Federal Rule of Criminal Procedure 36, which asks this Court to amend a claimed error in the computation of his sentence (ECF No. 40). This Court has reviewed the parties' submissions and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons below, Petitioner Redd's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 32) is DENIED, Petitioner Redd's Motion for Attorney Representation (ECF No. 33) is DENIED AS MOOT, and Petitioner Redd's Motion Pursuant to Federal Rule Criminal Procedure 36 (ECF No. 40) is DISMISSED without prejudice.

         BACKGROUND

         On January 28, 2016, a federal grand jury in Maryland returned an indictment charging Petitioner Redd with six counts of committing Hobbs Act Robbery in violation of 18 U.S.C. § 1951, and one count of attempted commission of Hobbs Act Robbery in violation of 18 U.S.C. § 1951. (Indictment, ECF No. 1.) The statement of facts set forth in Petitioner's Plea Agreement describes six additional Hobbs Act robberies committed by Petitioner in less than one month. (Id.) Twice on July 22, 2015, once on July 29, 2015, once on August 12, 2015, once on August 16, 2015, and once on August 18, 2015, Redd used what looked like a black handgun to forcibly steal U.S. currency valued over approximately |4, 227 from various businesses engaged in the retail sale of consumer products obtained from vendors outside the state of Maryland.[1] (Plea Agreement, ECF No. 17 at 4-5; Presentence Report, ECF No. 20.) On several of these occasions, Redd stole magazines, cigarettes, and other merchandise in addition to the currency taken from the establishments. (Id.) All six robberies occurred in Baltimore, Maryland. (Id.) On August 19, 2015, Redd was arrested and found in possession of a black BB gun, an object that witnesses identified as the weapon used in the six robberies. (Id.) Although the weapon used in each robbery was not a firearm, [2] Redd nevertheless expressed to cashiers: "Hurry up or I'm going to shoot you" and "You all are playing, I'm going to start shooting," and he never failed to expose his BB gun at each robbery. (See Plea Agreement, Count One and Count Six, ECF No. 17.)

         Following his indictment, on September 8, 2016, Petitioner signed a Plea Agreement, through which he pleaded guilty to Count One of the original indictment. (Plea Agreement, ECF No. 17.) Pursuant to the Plea Agreement, Redd and the Government stipulated that the applicable base offense level under the United States Sentencing Guidelines for the robbery charged in Count One was 20. (Id. at ¶ 6.b (citing U.S.S.G. § 2B3.l(a).) However, because the parties stipulated to the fact that Petitioner brandished or possessed a dangerous weapon, the offense level for Count One was 23. (Id. citing U.S.S.G. § 2B3.1(b)(2)(E).) The offense level was raised by an additional five levels-to 28-because Petitioner admitted to the conduct charged in Counts Two through Six of the indictment. (Id. citing U.S.S.G § lBl.2(c) and § 3Dl.4(a).) Ultimately, the parties agreed that the anticipated final base level offense was 25, due to Petitioner's acceptance of personal responsibility for his criminal conduct and his timely notification of his intent to plead guilty. (Id. citing U.S.S.G. § 3El.l(b).) The parties stipulated that Petitioner's criminal history category is VI. (Statement of Reasons, ECF No. 26.) Pursuant to Petitioner's Plea Agreement and the Sentencing Reform Act of 1984, as modified by United States v. Booked[3]on November 9, 2016, this Court sentenced Petitioner to 120 months imprisonment and 3 years supervised release.[4] (Plea Agreement, ECF No. 17; Judgment, ECF No. 25; Statement of Reasons, ECF No. 26.) Petitioner did not appeal the judgment.

         On September 10, 2018, Petitioner filed the pending Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, arguing that (1) he was erroneously sentenced as a career criminal offender with a base offense level 32, and (2) that a conviction under Hobbs Act Robbery is not a crime of violence, and therefore, Petitioner's sentence should be reduced. (ECF No. 32.) On the same day, Petitioner also filed the pending Motion for Attorney Representation. (ECF No. 33.) The Government's Response (ECF No. 39) contended, among other things, that the § 2255 petition was untimely because it had been filed over one year after the judgment of this Court became final on November 23, 2016. On May 20, 2019, Petitioner filed a Motion Pursuant to Federal Rule of Criminal Procedure 36 (ECF No. 40) arguing that his jail credit was not properly included in his Sentence Monitoring Computation Data Form. Petitioner asks this Court to review the computation of his sentence. (Id.)

         STANDARD OF REVIEW

         This Court recognizes that the 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.Appx. 141, 142 (4th Or. 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 (1962) (citing 28 U.S.C. § 2255). When seeking relief under 28 U.S.C. § 2255, a petitioner bears the burden of proving his or her grounds for collateral relief by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         The 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 shows cause and actual prejudice resulting from the errors of which he complains." United States p. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).

         ANALYSIS

         I. Petitioner's § 2255 Motion is Barred by the Statute of Limitations

         Petitioner Redd's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 fails because it is untimely. Under § 2255(f), a one-year period of limitations runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...

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