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Green v. United States

United States District Court, D. Maryland

October 3, 2019

MALCOLM XAVIER GREEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE

         On 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).

         On July 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.

         BACKGROUND

         The 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.)

         The 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.)

         Green 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, 593.00. Id.

         On May 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).

         Now 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.

         STANDARD OF REVIEW

         This 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).

         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 (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)).

         ANALYSIS

         Green 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.

         I. Petitioner's § 924(c) conviction was proper.

         Petitioner 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 and meritless.

         A. Green's arguments are procedurally barred.

         Green's 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 ยง 2255 motion which were ...


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