Foster v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 9/27/2017. (kw2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DANTE FOSTER,

*

Petitioner,

*

v.

*

UNITED STATES OF AMERICA,

*

Respondent.
*

*

Civ. Action No. RDB-15-2025
Crim. Action No. RDB-12-0319

*

*
*

*

*

*

*

*

*

*

*

*

MEMORANDUM OPINION
Following a five-day trial, a jury convicted the pro se Petitioner Dante Foster
(“Petitioner” or “Foster”) of one count of Possession of a Firearm by a Felon, in violation
of 18 U.S.C. § 922(g)(1), and one count of Possession with Intent to Distribute Cocaine, in
violation of 21 U.S.C. § 841(a)(1). (Jury Verdict, ECF No. 46); United States v. Foster, Case No.
13-4347, 565 Fed. App’x. 202 (4th Cir. 2014) (Mem). Judge Quarles of this Court1 sentenced
Foster to one-hundred and seventy-four (174) months imprisonment. Foster, 556 Fed. App’x
at 1. Foster subsequently appealed his conviction to the United States Court of Appeals for
the Fourth Circuit, which affirmed this Court’s judgement. Id.
On July 9, 2015, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence
Under 28 U.S.C. § 2255. (ECF No. 99.) On June 16, 2016, the Office of the Federal Public
Defender filed a Supplemental Motion on behalf of Petitioner. (ECF No. 106.) On June 19,

1 Judge William D. Quarles of this Court presided over Foster’s trial and sentenced him. This case was
subsequently reassigned to the undersigned Judge Richard D. Bennett upon Judge Quarles’ retirement from
this Court.

1

2017, Petitioner filed a Motion for Leave to File a Second Supplemental Motion. (ECF No.
107.) The parties’ submissions have been reviewed, and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2016). For the reasons stated herein, Petitioner’s Motion for Leave to
File a Second Supplemental Motion (ECF No. 107) is GRANTED and Petitioner’s Motion
to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 99) is
DENIED.
BACKGROUND
The background facts of this case were fully set forth in two of this Court’s
Memorandum Opinions on November 28, 2012 and May 20, 2013. United States v. Foster,
2012 WL 5995442 (D. Md. Nov. 28, 2012); United States v. Foster, 2013 WL 1975652 (D. Md.
May 10, 2013). To summarize, around December of 2011 a confidential informant told
Baltimore Police Department (“BPD”) detectives that Foster was selling drugs at his
brother’s home. Foster, 2012 WL 5995442 at *1. BPD detectives then obtained a search
warrant for the home and conducted pre-raid surveillance. Id. During the surveillance,
detectives observed Foster leave the home in a car registered to his name. Id. Two detectives
followed him. Id. When the detectives observed Foster change lanes without using a signal,
they stopped Foster’s car. Id. Upon approaching Foster’s car, Detective Mahan saw in plain
view a baggie with suspected marijuana. Id. The detectives arrested Foster. Id.
Upon a search of Foster incident to his arrest, the detectives found currency and a
digital scale. Id. In Foster’s car, the detectives found suspected marijuana and cocaine and a
Smith & Wesson 9mm semi-automatic handgun. Id. at *1-2. The detectives also lawfully
searched the home of Foster’s girlfriend, where they found ammunition, loaded magazine
2

holders, cartridge magazines, and cartridges. Id. at *2. Upon interviewing Foster, he told the
BPD detailed information about recent cocaine transactions and provided the detectives
with a list of customers. Id. On December 29, 2011, Petitioner was charged with one count
of Possession of a Firearm by a Felon, in violation of 18 U.S.C. § 922(g)(1), and one count
of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1).
On June 6, 2012, Foster was indicted. Prior to trial, he filed three motions to suppress
related to the traffic stop, arrest, and subsequent seizure of evidence from Foster’s car. Id. at
*5. After a hearing, Judge Quarles denied all three motions. Id. at *8. On November 26,
2012, Petitioner’s jury trial began. (ECF No. 82.) On the third day of trial, Petitioner made
an oral motion to proceed pro se, which this Court granted. (ECF No. 38; ECF No. 84 at 112). On November 29, 2012, the jury found Foster guilty of both counts. (ECF No. 40);
Foster, 2013 WL 1975652 at *1. Subsequently, Foster moved pro se to appoint investigative
and expert witnesses, for a detention hearing, and to dismiss for lack of jurisdiction under
Federal Rule of Criminal Procedure 34. Id. The first two motions were denied as moot. Id. at
*2 n. 6. Although Foster’s third motion for lack of jurisdiction was untimely, this Court
addressed it on the merits. Id. at *1. Foster argued that the stop and arrest violated a
Maryland law prohibiting local police officers from making arrests outside of their
jurisdiction. Id. This Court found, however, that the BPD detectives lawfully arrested Foster
in Baltimore County under the fresh pursuit doctrine.2 Id. at *1.

2 The Maryland “common law doctrine of fresh pursuit allows an officer to pursue and arrest a person
outside of the officer’s jurisdiction, without a warrant, for misdemeanors committed in the officer’s presence
within a reasonable time after commission of the crime.” Seip v. State, 153 Md. App. 83, 86, 835 A. 2d 187,
189 (Md. 2003).

3

Foster appealed to the Fourth Circuit. United States v. Foster, 565 Fed. App’x. 202 (4th
Cir. 2014) (Mem). The sole issue raised on appeal was whether the district court improperly
used Foster’s prior Maryland state court conviction to enhance his criminal history category.
Id. The Fourth Circuit affirmed the district court, holding that Foster did not meet his
burden of showing that the prior conviction was invalid. Id.
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, __ U.S. __, 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 show cause and actual prejudice
resulting from the errors of which he complains.” United States v. Pettiford, 612 F. 3d 270, 280
4

(4th Cir. 2010) (citing United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
ANALYSIS
I.

Petitioner’s Motion to Vacate (ECF No. 99) is timely
A one-year statute of limitations applies to § 2255 petitions. 28 U.S.C. § 2255(f). The

limitations period 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 applicable to cases
on collateral review; or (4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence. Id.; see also
Whiteside v. United States, 775 F.3d 180, 183 (4th Cir. 2014).
A conviction becomes final for the purpose of starting the one-year limitations period
when the opportunity to appeal expires. See Clay v. United States, 537 U.S. 522, 524-25
(2003); United States v. Sosa, 364 F. 3d 507, 509 (4th Cir. 2004). Foster’s judgment of
conviction was affirmed on April 7, 2014. Therefore, his judgment of conviction would have
become final on or about July 7, 2014, when the ninety day period for filing a petition for
writ of certiori with the Supreme Court expired. See Sup. Ct. R. 13.1 (requiring petition for
writ of certiori to be filed within ninety days of the date of judgment from which review is
sought). The Government has not challenged the timeliness of Petitioner’s Motion to Vacate
and this Court accords his pleadings liberal construction in light of his proceeding pro se in
5

this matter. Accordingly, this Court will address the issues raised and, for the sake of
argument, treat the motion as having been timely filed.
II.

Petitioner’s Motion to Amend and Supplement
This Court also preliminarily addresses Petitioner’s Motion for Leave to File a Second

Supplemental Motion to Vacate (ECF No. 107) under Rule 15(d) of the Federal Rules of
Civil Procedure. “The Court may . . . permit a party to serve a supplemental pleading . . .
even though the original pleading is defective in stating a claim or defense.” Fed. R. Civ.
Proc. 15(d). The United States Court of Appeals for the Fourth Circuit has instructed that
“the standards used by a district court in ruling on a motion to amend or on a motion to
supplement are nearly identical.” Franks v. Ross, 313 F.3d 184, 198 n. 15 (4th. Cir. 2002). “In
either situation, leave should be freely granted, and should be denied only where ‘good
reason exists ... such as prejudice to the defendants.’” Id. (quoting Walker v. United Parcel
Serv., 240 F.3d 1268, 1278 (10th Cir.2002)). In light of the Government’s non-opposition to
this Motion, the amendment Petitioner requests (ECF No. 107) is hereby considered in
conjunction with the arguments asserted in his original Motion to Vacate, Set Aside, or
Correct Sentence (ECF No. 99).
III.

Trial court did not err by allowing Petitioner to proceed pro se

Petitioner argues that it was “error for the district court to allow the petitioner to
engage in self representation at the middle of the trial” because he was not sufficiently
warned of the dangers of waiving the right to counsel. (ECF No. 104 at 7-8.) As the Fourth
Circuit has explained, “[w]hile a trial court must determine if a waiver of counsel is knowing
and intelligent, no particular interrogation of the defendant is required, so long as the court
6

warns the defendant of the dangers of self-represetnation so that ‘his choice is made with his
eyes open.’” United State v. Rodgers, Case No. 12-4397, 537 Fed. App’x. 273, 274 (4th Cir.
Aug. 12, 2013) (quoting United States v. King, 582 F.2d 888, 890 (4th Cir. 1978)). In Rodgers,
the court held that the petitioner was appropriately allowed to proceed pro se after he had
elected to do so, “was fully aware of the nature of the charges against him and the potential
punishments he faced if convicted,” and was informed of the “perils of self-representation.”
Id. at 275.
As in Rodgers, the trial transcript shows that Judge Quarles appropriately allowed
Petitioner to proceed pro se. (ECF No. 84 at 1-12.) Judge Quarles advised Petitioner that he
had a constitutional right to counsel. (Id. at 2-3.) When Petitioner stated that he was “still
trying to figure out exactly what [he was] charged with,” Judge Quarles confirmed for the
second time that Petitioner understood the two charges, their penalties, and the elements of
each offense. (Id. at 5-6.) Judge Quarles also advised Petitioner that if he represented himself,
the court would not assist him or advise him on how to try his case. (Id. at 9.) In addition,
this Court required Petitioner to proceed with “hybrid representation,” appointing the
attorney who had been representing him as standby counsel. (Id. at 12.) Accordingly, the
evidence shows that Petitioner was properly advised of the dangers of self-representation,
and knowingly, intelligently, and voluntarily chose to proceed pro se. Therefore, this argument
fails.
IV.

Petitioner’s Fourth Amendment claim is procedurally defaulted
Petitioner argues that his Fourth Amendment rights were violated when the

Baltimore Police Department searched his car for a second time, more than five hours after
7

the police pulled Petitioner over. (ECF No. 99 at 7.) Petitioner did not, however, argue this
on his appeal to the Fourth Circuit. It is well established that issues not raised on direct
appeal are deemed procedurally defaulted and cannot be considered in a subsequent § 2255
motion unless the movant can show that either “cause and actual prejudice” resulted from
the asserted errors, or that an “imminent miscarriage of justice” would result from a denial
of the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999)).
Cause “must turn on something external to the defense, such as the novelty of the claim or a
denial of effective assistance of counsel.” Id. at 493. Alternatively, demonstrating
“miscarriage of justice” requires a showing of the movant’s “actual innocence by clear and
convincing evidence.” Id. (citing Murray v. Carrier, 477 U.S. 478, 496 (1986)).
First, Petitioner has not made a showing of cause and prejudice. During the pre-trial
suppression hearing, Petitioner’s counsel argued that the search of the car was illegal under
the search incident to lawful arrest exception. Foster, 2012 WL 5995442 at *6. Specifically,
Foster’s counsel argued that the search was invalid because the car was not within reaching
distance of Foster at the time he was arrested. Id. Following a hearing in which Petitioner
testified, this Court denied that motion. Id. This Court found that the automobile exception
applied and therefore waiting to fully search the car did not render the search illegal. Id.
Second, however, Petitioner argues that he is actually innocent because he did not
know that drugs were in the car.3 (ECF No. 99-1 at 6.) The actual innocence exception “only
applies in limited circumstances.” United States v. Jones, 758 F. 3d 579, 583 (4th Cir. 2014). A
“petitioner must show that it is more likely than not that no reasonable juror would have

3 Although Petitioner argues he is actually innocent in the context of the variance he received, given this
Court’s liberal construction of his pro se pleadings, it will consider it here as well.

8

convicted him in light of the new evidence.” Id. (emphasis added). Petitioner supports his
arguments with two affidavits detailing an alleged sequence of events on the day Petitioner
was arrested. However, Petitioner offers no reason for why this testimony was not available
at trial, aside from arguing that counsel was ineffective for failing to subpoena the affiants.
(ECF No. 99-1 at 6.) See Lewis v. Clarke, Case No. 2:13-cv-549, 2014 WL 2090563, at *6
(E.D. Va. May 19, 2004) (“Lewis offers no credible reason as to why Overton’s testimony
was unavailable, other than the argument that his attorney was ineffective for failing to “find
her.” This is not “new evidence.”).
Even if this claim was not procedurally defaulted, the record shows that Petitioner
could not establish a Fourth Amendment violation on the merits. Twice this Court denied
Petitioner’s Fourth Amendment claims. First, in response to counsel’s pre-trial motion to
suppress. Second, in response to Petitioner’s post-trial motion concerning the jurisdictional
issue relating to the search and arrest. Foster, 2012 WL 5995442; Foster, 2013 WL 1975652.
Accordingly, this argument fails.
V.

Petitioner’s sentencing claim is procedurally defaulted
Petitioner argues that he is serving an “improper sentence outside the guidelines”

because Judge Quarles “double counted” his two prior convictions to both calculate his
criminal history and base offense level and apply a variance. (ECF No. 99-1 at 5-6.) Like his
Fourth Amendment claim, Petitioner failed to argue this on his appeal to the Fourth Circuit.
Therefore, it is procedurally defaulted and Petitioner has not met his burden of showing
cause and prejudice or actual innocence.

9

Even if this claim was not procedurally defaulted, this Court sentenced Petitioner
above the advisory guidelines range by applying a variance after consideration of the factors
set forth it 18 U.S.C. § 3553(a). (ECF No. 62.) The facts this Court used to justify the
variance included Petitioner’s serious record, the “length of his drug dealing career and his
facilitation of that career with firearms, the intransigence of his drug dealing despite
significant prison sentences, and his obstruction of justice in this case.” (Id.) Because these
are appropriate considerations under § 3553(a) and a court is not required to give notice
prior to applying a variance, Irizarry v. United States, 553 U.S. 708 (2008), this argument fails.
VI.

Petitioner’s counsel, when representing Plaintiff, was not ineffective
A freestanding claim of ineffective assistance of counsel may properly be asserted for

the first time in a § 2255 petition. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991). To state a claim for relief based on a Sixth Amendment claim of ineffective assistance
of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington,
466 U.S. 668, 671 (1984). The first, or “performance,” prong of the test requires a showing
that defense counsel’s representation was deficient and fell below an “objective standard of
reasonableness.” Id. at 688. In making this determination, courts apply a strong presumption
that counsel’s actions fell within the “wide range of reasonable professional assistance.” Id. at
688-89. The second, or “prejudice” prong, requires that a petitioner demonstrate that his
counsel’s errors deprived him of a fair trial. Id. at 687.
In applying the Strickland test, the United States Court of Appeals for the Fourth
Circuit has noted that there is no reason to address both prongs if the defendant makes “‘an
insufficient showing on one.’” Moore v. Hardee, 723 F. 3d 488, 500 (4th Cir. 2013) (quoting
10

Strickland, 466 U.S. at 697). Thus, ineffective assistance of counsel claims may be disposed of
based solely on a deficiency in satisfying either the “performance” prong or the “prejudice”
prong. See Strickland, 466 U.S. at 697. The Fourth Circuit has noted further that the mere
possibility of a different trial result does not satisfy the burden of proving prejudice. Hoots v.
Allsbrook, 785 F.2d 1214, 1221 (4th Cir. 1986).
a. Alleged failure to raise jurisdictional issue
Petitioner claims that counsel was ineffective for failing to argue that the BPD
detectives who pulled Petitioner over and searched his vehicle did so in Baltimore County,
outside their jurisdiction. (ECF No. 99 at 4.) Petitioner claims that had counsel highlighted
certain facts concerning the detective’s real reason for pulling Petitioner over and searching
his car, this Court “may have viewed these crooked cops’ actions (sic) in a different way and
agreed to suppress the fruit of the poisonous tree.” (ECF No. 104 at 3.)
Contrary to Petitioner’s assertions, Petitioner’s counsel did raise this issue during the
pre-trial suppression hearing. (ECF No. 83.) During that hearing, Petitioner’s counsel argued
that “because the stopping detective was a Baltimore City sworn detective, he had no
jurisdiction to stop the vehicle in Baltimore County.” (Id. at 6.) In addition, counsel argued
that the fresh pursuit doctrine did not apply under the circumstances. (Id.) This Court denied
the motion. (Id. at 8.) To the extent that Petitioner wishes his counsel had argued the motion
differently, “[t]he Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” United States v. Basham, 789 F. 3d 358, 371
(4th Cir. 2015). In addition, when Petitioner raised this argument again pro se after the trial,

11

this Court again rejected the argument. United States v. Foster, 2013 WL 1975652 (D. Md. May
10, 2013). Accordingly, this argument fails.
b. Failure to hire expert investigator
Petitioner argues that counsel was ineffective for failing to hire an expert investigator
to obtain video footage of the traffic stop. Plaintiff claims that a video would have shown
that the car windows were too tinted for the detectives to see anything under the plain view
doctrine. (ECF No. 99-1 at 2.) This argument can be classified as an attack on counsel’s trial
strategy. When attacking a strategic choice made during trial, a petitioner must “overcome
the presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). In deciding whether Petitioner has met this burden, this Court must make a “fair
assessment of attorney performance,” which “requires that every effort be made to eliminate
the distorting effects of hindsight.” Id.
Although counsel did not obtain video footage of the traffic stop, counsel raised the
issue of whether the car windows were too tinted to see through in two significant ways.
First, photographs of the car were introduced. (ECF No. 85 at 42-43.) Second, counsel
conducted a thorough cross-examination of one of the arresting detectives, Detective
Malone, using photographs of the car. (ECF No. 83 at 39-41). In light of these
circumstances, it was not “outside the wide range of professionally competent assistance”
for Petitioner’s counsel to use these trial strategies rather than call an expert to obtain video
footage of the traffic stop. Strickland, 466 U.S. at 690. Accordingly, this argument fails.
c. Failure to interview witnesses
12

Petitioner argues that counsel was ineffective for failing to interview two witnesses,
Octavious Strong and Anthony Campbell, who he claims would have supported his
argument that he did not know there was contraband in the car. (ECF No. 104 at 4.)
Specifically, he claims that they would have testified to “inadvertently placing the cup and
contraband contents in the petitioner’s van that very day without the petitioner’s
knowledge.” (ECF No. 104 at 4.) Petitioner argues that this would have “made a difference
in the trial had the jury been able to here that the drugs were not the petitioners.” (ECF No.
99-1 at 8.) This argument fails for three reasons.
First, as discussed supra, Petitioner knowingly, voluntarily and intelligently waived his
right to counsel. From the moment Petitioner decided to proceed pro se, he “cannot now
assert that he was denied the effective assistance of counsel.” United States v. Bryson, No. 014836, 04-6010, 105 Fed. App’x at 476 (4th Cir. July 23, 2004) (citing Faretta v. California, 422
U.S. 806, 834-835 n. 46 (4th Cir. 2004)). Petitioner offers no reason for why he did not call
these witnesses, or ask for a continuance in order to do so, while proceeding pro se. Second,
to the extent Petitioner claims that “these are matters counsel should have done pretrial and
at suppression hearing to exclude the evidence recovered from the illegal search,” (ECF No.
104 at 6), Petitioner has failed to meet the performance prong of the Strickland test.
Petitioner testified at the pre-trial suppression hearing. As the Government’s response notes,
at no point does he indicate that there were other individuals in the car with him.
Additionally, Petitioner has offered no evidence that these individuals were available to
testify in 2012 given that both affidavits are dated 2014 and 2015.

13

Third, even if this Court were to conclude that the failure to investigate these
witnesses constituted deficient performance, Petitioner would need to demonstrate a
“reasonable probability” that presentation of these witnesses would have changed the result
at trial. Strickland, 466 U.S. at 694. When evidence of guilt is overwhelming, there is not a
reasonably probability that but for counsel’s errors, the result would have been different.
United States v. Higgs, 663 F. 3d 726, 742 (4th Cir. 2011). In this case, the prosecution called
DEA agents and Baltimore Police officers who testified to the pre-raid surveillance at
Foster’s brother’s home. Detective Mahan detailed how when Foster left his brother’s home
by car, the detective and another officer followed Foster. In addition, the detective testified
that when he approached the car, he immediately saw marijuana, and up searching Foster
incident to his arrest, found currency and a digital scale. Another detective described the
second search of Foster’s car which revealed a handgun, clip, and ammunition. A Special
Agent with the Drug Enforcement Administration testified to the search of Foster’s
girlfriend’s home where the additional ammunition, loaded magazine holders, cartridge
magazines, and cartridges were found. Various witnesses testified to the contents of the
marijuana and cocaine. Finally, a detective detailed Foster’s statements to the police after he
was arrested. Accordingly, the evidence of guilt was overwhelming and this argument fails.
d. Failure to object to upward variance
Finally, Petitioner argues that counsel failed to object to this Court’s imposition of an
upward variance in Defendant’s sentence. (ECF No. 99-1 at 8.) As an initial matter,
Petitioner proceeded pro se through sentencing, and therefore as discussed above, “cannot
now assert that he was denied the effective assistance of counsel.” Bryson, 105 Fed. App’x. at
14

476 (citing Faretta, 422 U.S. at 834-835 n. 46). In addition, as also discussed supra, this Court
did not abuse its discretion by applying an upward variance to Petitioner’s sentence.
VII.

Johnson v. United States does not apply to the advisory sentencing

guidelines

In Petitioner’s Supplemental Motion to Vacate (ECF No. 106) he added a claim
under Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015).4 In Johnson, the Supreme
Court struck down the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii) as unconstitutionally vague. Petitioner argues that under Johnson, the
“Career Offender” provision applied to Petitioner during his sentencing is void for
vagueness. (ECF No. 106.) Because 28 U.S.C. § 2255 grants petitioners a one year period to
assert rights newly recognized by the United States Supreme Court, the motion is timely.
During Petitioner’s sentencing hearing, this Court found that his prior conviction for
assault with intent to murder qualified as a “crime of violence.” As a result, he was deemed a
career offender and sentenced to one-hundred and seventy-four (174) months
imprisonment. Although the “Career Offender” provision in the Sentencing Guidelines
includes the identical residual clause as that struck down in Johnson, the Court has
subsequently held that the advisory guidelines are not subject to Johnson challenges. Beckles v.
United States, __ U.S. __, 137 S. Ct. 886 (2017). Accordingly, this argument fails. For this
reason, Petitioner’s Supplemental Motion to Vacate (ECF No. 106) is DENIED.
VIII. United States v. Mathis did not create a new rule of law

4 The Office of the Public Defender (OFPD) filed this motion on behalf of Petitioner. Subsequent to the
United States Supreme Court’s decision in Beckles v. United States, __ U.S. __, 137 S. Ct. 886 (2017), the OFPD
filed a Motion to Withdraw as Counsel (ECF No. 108), which this Court granted (ECF No. 109).

15

In Petitioner’s Second Supplemental Motion to Vacate (ECF No. 107), he adds a
claim under United States v. Mathis, __ U.S. __, 136 S. Ct. 2243 (2016). In Mathis, the Supreme
Court applied the “categorical approach” and determined that Iowa’s burglary statute could
not serve as a predicate violent felony to enhance the petitioner’s sentence under ACCA. Id.
Petitioner argues that under Mathis, his prior conviction for assault with intent to commit
murder does not categorically qualify as a predicate offender for enhancement under
U.S.S.G. § 2K2.1(a)(4)(a). Because Petitioner filed his appeal within one year of the Mathis
decision, the motion is timely.
Retroactive application of judicial decisions is governed by the standard announced
in Teague v. Lane, 489 U.S. 288 (1989). In Teague, the Supreme Court stated that a “new rule”
is a rule that “breaks new ground or imposes a new obligation on the States or the Federal
Government.” Id. at 301. “[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant’s conviction became final.” Welch v. United
States, ––– U.S. ––––, 136 S.Ct. 1257, 1264 (2016) (quoting Teague, 489 U.S. at 301). In line
with other courts, this Court has previously held that Mathis did not establish a new rule of
law. Gary v. Kallis, Case. Nos. ELH-17-1255, ELH-08-86, 2017 WL 2242680, at *4-5 (D. Md.
May 23, 2017); Stewart v. United States, Case Nos. ELH-13-262, ELH-17-1408, 2017 WL
2361089, at *4-5 (D. Md. May 31, 2017). Rather, Mathis reaffirmed the categorical approach
previously set forth by the Court in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v.
United States, 544 U.S. 13 (2005). For that reason, this argument fails.
CONCLUSION

16

For the reasons stated above, Petitioner Foster’s Motion to Correct Sentence Under
28 U.S.C. § 2255 (ECF No. 99) and Supplemental Motions (ECF Nos. 106 and 107) are
DENIED.
Pursuant to Rule 11(a) of the Rules Governing Proceedings under 28 U.S.C. § 2255,
the court is required to issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. A certificate of appealability is a “jurisdictional prerequisite” to an
appeal from the court’s earlier order. United States v. Hadden, 475 F.3d 652, 659 (4th Cir.
2007). A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the court
denies petitioner’s motion on its merits, a petitioner satisfies this standard by demonstrating
that reasonable jurists would find the court’s assessment of the constitutional claims
debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Because reasonable jurists would not find Foster’s
claims debatable, a certificate of appealability is DENIED.
A separate Order follows.

Dated: September 27, 2017
/s/
Richard D. Bennett
United States District Judge

17

_