United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
February 11, 2016, pro .re Petitioner Malcolm Green
("Petitioner" or "Green") pled guilty to
one count of conspiracy to commit bank robbery, in violation
of 18 U.S.C. § 371; two counts of bank robbery in
violation of 18 U.S.C. § 2113(a), (f); and one count of
armed bank robbery in violation of 18 U.S.C. § 2113(a),
(d) and (f); and one count of brandishing a firearm in
relation to a crime of violence under 18 U.S.C. §
924(c)(1) (A) (ii) after executing a string of robberies
between June 1, 2015 and July 24, 2015. (Plea Agreement, ECF
No. 44.) On May 31, 2016 this Court sentenced Green to a term
of one hundred and fifty-four (154) months imprisonment and
three (3) years of supervised release. (Judgment, ECF No.
64.) On April 5, 2017, the U.S. Court of Appeals for the
Fourth Circuit affirmed this sentence. United States v.
Green, 684 Fed.Appx. 300 (4th Or. 2017).
11, 2018, Petitioner filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No.
124) which is now pending before this Court. The Government
opposes the Motion. This Court has reviewed the parties'
submissions and no heating is necessary. For the reasons
stated below, Petitioner's Motion to Vacate, Set Aside,
or Correct Sentence (ECF No. 124) is DENIED.
facts of this case are set forth in the Petitioner's plea
agreement. (Plea Agreement Attach. A, ECF No. 44.) In June
2015, Malcolm Green and Andre Walker ('Walker")
entered into a conspiracy to rob banks in Maryland and
Virginia. (Id.) Between July 1, 2015 and July 24,
2015, Green and Walker engaged in four bank robberies.
(Id.) One such robbery occurred on July 17, 2015.
(Id.) Green initiated the robbery by approaching the
bank teller and passing a note that stated, "Give me
$15, 000. Don't push any buttons, don't tell anybody,
I'll come back shooting." (Id., ) When the
teller hesitated, Walker brandished a firearm. (Id.)
The teller then provided $5, 364.00 in cash, and Green and
Walker made their escape. (Id.) Subsequently,
investigators identified Green through a fingerprint analysis
of prints on the note. (Id.) On August 3, 2015,
Green and Walker were arrested. (Id.)
Grand Jury indicted Green and Walker for one count of
Conspiracy to Commit bank robbery (Count One), two counts of
bank robbery (Counts Two and Three), one count of armed bank
robbery (Count Four), and one count of using, carrying, and
brandishing a firearm in relation to a crime of violence
(Count Five). (Indictment, ECF No. 1.) In January 2016,
Walker and Green moved to dismiss Count Five, the §
924(c) charge, arguing that neither armed bank robbery nor
bank robbery conspiracy constitute "crimes of
violence" which could support a conviction under Count
Five. (ECF Nos. 32, 36.) In a Memorandum Order issued that
month, this Court denied the Defendants' Motions, holding
that armed bank robbery was a crime of violence under §
924(c). (ECF No. 38.)
pled guilty to all Counts charged in the Indictment pursuant
to a plea agreement. (Plea Agreement, ECF No. 44.) On May 31,
2016, this Court sentenced Green to 154 months imprisonment
and three years of supervised release. (Judgment, ECF No.
64.) Petitioner was also ordered to pay restitution of $10,
31, 2016, Green and Walker appealed their sentences to the
United States Court of Appeals for the Fourth Circuit.
(Notice of Appeal, ECF No. 66.) In their appeal, Green and
Walker challenged the § 924(c) conviction, once again
arguing that armed bank robbery did not qualify as a crime of
violence. United States v. Green, 684 Fed.Appx. 300
(4th Cir. 2017) (unpublished, per curiam). The
Fourth Circuit rejected this argument, noting that it had
previously held that armed bank robbery constitutes a
"crime of violence" in United States v.
McNeal, 818 F.3d 141 (4th Cir. 2016). Id.
(citing United States v. McNeal, 818 F.3d 141 (4th
Cir.), cert denied, 137 S.Ct. 164 (2016).
Accordingly, the Fourth Circuit affirmed this Court's
sentence. Green, 684 Fed.Appx. 300 (4th Cir. 2017).
pending is Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Mot. To
Vacate, ECF No. 124.) In his Motion, Petitioner once again
argues that his convictions, including armed bank robbery, do
not constitute "crimes of violence" under §
924(c). He also argues that his counsel was ineffective for
failing to pursue discovery related to the fingerprint
evidence which implicated him in the robberies.
Court recognizes that Petitioner is pro se and has
accorded his pleadings liberal construction. See Erickson
v. Pardus, 551 U.S. 89, 94 (2007). 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). "[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 (1979)
(quoting Hill, 368 U.S. at 428).
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 (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 [can] show cause and
actual prejudice resulting from the errors of which he
complains." United States v. Pettiford, 612
F.3d 270, 280 (4th Cir. 2010) (citing United States v.
Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
petitions this Court to vacate his sentence on two grounds.
First, he contends that the crimes to which he pled
guilty--bank robbery conspiracy, bank robbery, and armed bank
robbery-do not constitute crimes of violence under 18 U.S.C.
§ 924(c)(1)(A). Petitioner also contends that his
counsel was ineffective for failing to investigate
fingerprint evidence in possession of the government.
Green's argument concerning his § 924(c) charge has
previously been rejected by this Court and the United States
Court of Appeals for the Fourth Circuit. Accordingly, the
argument is both meritless and procedurally barred. As to his
ineffective assistance of counsel claim, Petitioner fails to
demonstrate that his counsel was ineffective for failing to
pursue certain evidence. His claims also contradict his sworn
statements during his Rule 11 plea colloquy. Accordingly, the
Motion to Vacate, Set Aside, or Correct Sentence (ECF No.
124) is DENIED.
Petitioner's § 924(c) conviction was
argues that his sentence must be vacated as none of his
convictions are considered "crimes of violence"
under 18 U.S.C. § 924(c). Green asserts that bank
robbery conspiracy, armed bank robbery, and bank robbery do
not have as a required element the use, attempted use, or
threatened use of violent force. (ECF 124 at 4.) For these
arguments, Green relies on the Fourth Circuit's Opinions
in United States v. Torres-Miguel, 701 F.3d 165 (4th
Cir. 2012) and United States v. Woodrup, 86 F.3d 359
(4th Cir. 1996). These arguments are both procedurally barred
Green's arguments are procedurally barred.
arguments concerning his § 924(c) charge are not proper
at this stage because the Fourth Circuit rejected them on
direct appeal. "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 (1982)). Criminal defendants
may not re-raise issues in a § 2255 motion which were