Wright v. USA - 2255

Filing 3

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 6/8/2017. (c/m 6/9/17 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM WRIGHT,
Petitioner,
Crim. No. ELH-06-0447
(Related Civil No. ELH-15-2267)

v.
UNITED STATES OF AMERICA
Respondent.

MEMORANDUM OPINION
This Memorandum Opinion resolves a Motion to Vacate, Set Aside, or Correct Sentence,
filed under 28 U.S.C. § 2255 by William Wright, the self-represented petitioner. ECF 32
(―Petition‖). As discussed, infra, no hearing is necessary to resolve the matter.
I. Factual Background
Wright was indicted in October 2006. ECF 1. The case was assigned to Judge William
D. Quarles, Jr.1 On December 19, 2006, Wright entered a plea of guilty to the charge of being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See Docket.2 Prior to
sentencing, the United States Probation Office completed a presentence report (―PSR‖). ECF
39.3 According to ¶ 21 of the PSR, Wright qualified as an Armed Career Criminal, pursuant to
U.S.S.G. § 4B1.4. See also the Armed Career Criminal Act (―ACCA‖), 18 U.S.C. § 924(e).
That determination was based on the fact that Wright had three prior and distinct serious drug

1

Judge Quarles retired in February 2016. The case was reassigned to me on August 6,
2015, due to the then impending retirement of Judge Quarles. See Docket.
2
3

The Plea Agreement was not docketed.

The presentence report was not docketed but a copy was in Judge Quarles‘s office file.
I recently filed it under seal. See ECF 39.

convictions. See also ECF 39, ¶ 45.4 Based on this finding, Wright‘s final adjusted offense level
was 30 and his criminal history category was VI, resulting in an adjusted sentencing guideline
range of 180 to 210 months. ECF 39, ¶ 46; U.S.S.G. § 5G1.1.
On March 7, 2007, Judge Quarles sentenced Wright to 180 months incarceration, the
mandatory minimum sentence pursuant to the ACCA, followed by five years of supervised
release. See ECF 18. Judgment was entered on March 8, 2007. Id. Wright did not note an
appeal to the Fourth Circuit. See Docket.
Over eight years later, on August 3, 2015, Wright filed a motion to vacate under 28
U.S.C. § 2255. ECF 32. In light of Johnson v. United States, __ U.S. __, 135 S. Ct. 2551
(2015), Wright contends that he was improperly designated as an Armed Career Criminal. ECF
32 at 4; id. at 15.

In particular, he complains that a charge of ―possession of cocaine‖

unconstitutionally served as the predicate offense for his classification as an Armed Career
Criminal. Id. at 15. Wright also asserts a claim of ineffective assistance of counsel. In this
regard, he contends that his attorney failed to file an appeal despite being asked repeatedly to do
so. Further, Wright maintains that his attorney failed to object to the erroneous classification of
Wright as an Armed Career Criminal. Id. at 4.
On August 7, 2015, the Court directed the government to respond to Wright‘s Petition.
ECF 33. Subsequently, on October 22, 2015, Wright‘s Petition was stayed, pursuant to Standing
Order No. 2015-01. ECF 34. On September 22, 2016, the government submitted a response in
opposition to the Petition. ECF 37 (―Opposition‖). In its Opposition, the government asked the
Court to lift the stay and deny Wright‘s Petition. Id. at 2.
4

The government argued that the

An offender is an armed career criminal and subject to a mandatory minimum sentence
of fifteen years if he violates 18 U.S.C. § 922(g) and ―has three previous convictions...for a
violent felony or a serious drug offense, or both, committed on occasions different from one
another....‖ 18 U.S.C. § 924(e); see also U.S.S.G. § 4B1.4.

-2-

ineffective assistance of counsel claims are time-barred and that the Johnson claim is not
meritorious. ECF 37.
Although Petitioner was granted 21 days from the date of the government‘s response to
file a reply (see ECF 33), he did not do so. However, on March 24, 2017, Wright filed a
―Motion for Judicial Opinion and Appointment of Counsel.‖ ECF 38 (―Motion to Appoint
Counsel‖).
For the reasons that follow, I shall lift the stay, deny the Motion to Appoint Counsel
(ECF 38), and deny the Petition. ECF 32. A certificate of appealability shall not issue.
II.

Discussion
A.

Section 2255(a) of Title 28 of the United States Code provides relief to prisoners in
federal custody. Pursuant to 28 U.S.C. § 2255(a), a prisoner in federal custody may ―move the
court which imposed the sentence to vacate, set aside or correct the sentence,‖ but only on
certain grounds: ―that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack....‖ See also United States v. Newbold, 791 F.3d 455, 459 (4th Cir. 2015).
Collateral attack is not a substitute for direct appeal; failure to raise certain issues on
direct appeal may render them procedurally defaulted on post-conviction review. United States v.
Frady, 456 U.S. 152, 165 (1982); accord Bousely v. United States, 523 U.S. 614, 630 (1998). In
other words, as a general rule, a petitioner who fails to raise a claim on direct appeal is barred
from raising the claim on collateral review. Sanchez–Llamas v. Oregon, 548 U.S. 331, 350–51

-3-

(2006). However, this bar generally does not apply to claims pertaining to ineffective assistance
of counsel. See, e.g., Massaro v. United States, 538 U.S. 500, 503–04 (2003).
The scope of review of non-constitutional error is more limited than that of constitutional
error. A non-constitutional error provides a basis for collateral attack only when it involves ―a
fundamental defect which inherently results in a complete miscarriage of justice‖ or is
―inconsistent with the rudimentary demands of fair procedure.‖ United States v. Mikalajunas,
186 F.3d 490, 496 (4th Cir. 1999); see Newbold, 791 F.3d at 459.
―[A]

mistaken

career

offender

designation

is

not

cognizable

on

collateral

review.‖ Newbold, 791 F.3d at 459 (citing United States v. Foote, 784 F.3d 931, 932-33 (4th Cir.
2015)).

In contrast, a defendant may challenge on collateral review an alleged erroneous

determination that he qualifies as an armed career criminal and has thus ―received a punishment
that the law cannot impose upon him.‖ Newbold, 791 F.3d at 460 (citation omitted).
Under 28 U.S.C. § 2255(b), the post-conviction court must hold a hearing ―[u]nless the
motion and the files and records conclusively show that the prisoner is entitled to no
relief....‖ See, e.g., United States v. White, 366 F.3d 291, 302 (4th Cir. 2004). Courts have
determined that a hearing is not necessary where ―the motion...fail[s] to allege sufficient facts or
circumstances upon which the elements of constitutionally deficient performance might properly
be found [or] where the defendant has failed to present any affidavits or other evidentiary
support for the naked assertions contained in his motion.‖ United States v. Taylor, 139 F.3d 924,
933 (D.C. Cir. 1998) (internal quotation marks and citation omitted); accord United States v.
McGill, 11 F.3d 223, 225–26 (1st Cir. 1993). On the other hand, a hearing is generally ―required
when a movant presents a colorable Sixth Amendment claim showing disputed material facts and
a credibility determination is necessary to resolve this issue.‖ United States v. Robertson, 219

-4-

Fed. App‘x. 286, 286 (4th Cir. 2007) (per curiam); see also United States v. Ray, 547 Fed.
App‘x. 343, 345 (4th Cir. 2013) (per curiam).
In reviewing the Petition, the Court is mindful that a self-represented litigant is generally
―held to a ‗less stringent standard[ ]‘ than is a lawyer, and the Court must liberally construe his
claims, no matter how ‗inartfully‘ pled.‖ Morrison v. United States, RDB-12-3607, 2014 WL
979201, at *2 (D. Md. Mar. 12, 2014) (internal citations omitted); see Erickson v. Pardus, 551
U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that claims of selfrepresented litigants are held ―to less stringent standards than formal pleadings drafted by
lawyers‖); Bala v. Commonwealth of Va. Dep't of Conservation & Recreation, 532 Fed. Appx.
332, 334 (4th Cir. 2013) (per curiam) (same). Nevertheless, I am satisfied that no hearing is
necessary to resolve Wright‘s claims. See Local Rule 105.6.
As to Wright‘s request for appointment of counsel (ECF 38), it is well established that
there is no Sixth Amendment right to counsel in collateral proceedings. See Pennsylvania v.
Finely, 481 U.S. 551, 555 (1987). A court may appoint counsel for a pro se litigant seeking
Section 2255 relief if the court determines ―that the interests of justice so require.‖ 18 U.S.C. §
3006A(a)(2)(B). Rule 8(c) of the Rules Governing Section 2255 Proceedings for the United
States District Courts provides that a court must appoint counsel only ―[i]f an evidentiary hearing
is required.‖
Upon careful consideration of the filings by petitioner, I am satisfied that Wright has
demonstrated the wherewithal to articulate the legal and factual basis of his claims. The issues
pending before the court are not unduly complicated and no evidentiary hearing is necessary in
this matter. Accordingly, I shall deny the Motion to Appoint Counsel (ECF 38).

-5-

B.
As noted, Wright claims that he received ineffective assistance of counsel. ECF 32. He
also asserts that, in light of Johnson, 135 S. Ct. 2551, he was improperly designated as an Armed
Career Criminal. ECF 32.
In Johnson, which was decided on June 26, 2015, the Supreme Court invalidated the
residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), ruling that the
definition of a ―violent felony‖ was unconstitutionally vague. 135 S. Ct. at 2555–57. The Court
determined that the residual clause ―did not articulate clearly how to evaluate the risks of injury
posed by a crime, depriving defendants of fair notice regarding their potential sentence and
inviting ‗arbitrary enforcement by judges.‘‖ United States v. Winston, 850 F.3d 667, 680 (4th
Cir. Mar. 13, 2017) (explaining and quoting Johnson, 135 S. Ct. at 2557). The Supreme Court
has also recognized that Johnson announced a new substantive rule of constitutional law, which
applies retroactively on collateral review. Welch v. United States, ____ U.S. ____, 136 S. Ct.
1257, 1264-65 (2016).
Under the provisions of 28 U.S.C. § 2255(f), a one-year limitation period applies to
petitions under § 2255, which 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.

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Timeliness under § 2255(f) is assessed on a ―claim-by-claim basis.‖ Capozzi v. United
States, 768 F.3d 32, 33 (1st Cir. 2014) (per curiam) (collecting cases from the Third, Sixth,
Ninth, Tenth, and Eleventh Circuits), cert denied, 135 S. Ct. 1476 (2015); see Zach v. Tucker,
704 F.3d 917, 924-25 (11th Cir. 2013) (en banc) (explaining that a petitioner may not use a
single, timely claim to revive time-barred claims), cert denied, 134 S. Ct. 156 (2013); Hannigan
v. United States, 131 F. Supp. 3d 480 (E.D.N.C. 2015), appeal dismissed, 638 Fed. App'x 234
(4th Cir. 2016) (per curiam), cert. denied, 137 S. Ct. 404 (2016); see also Mayle v. Felix, 545
U.S. 644, 662 (2005); Pace v. DiGuglielmo, 544 U.S. 408, 416 n. 6 (2005).
As indicated, the Supreme Court decided Johnson on June 26, 2015. See 135 S. Ct. 2551.
Thus, the deadline for § 2255 petitions filed under Johnson was June 26, 2016. See 28 U.S.C. §
2255(f)(3). Wright‘s Petition was filed on August 3, 2015. The government acknowledges that
Wright‘s Johnson claim is timely.
I reach a different result as to the claim of ineffective assistance of counsel.
Judgment was entered in this case on May 8, 2007. See ECF 18. The deadline for
Wright to file a Notice of Appeal expired fourteen days after entry of the Judgment. Fed. R. App.
P. 4(b)(1)(A). Therefore, the deadline for noting an appeal was May 22, 2007. No appeal was
filed. Upon expiration of the time for filing a Notice of Appeal, Wright‘s conviction became
final and the limitations period set forth at 28 U.S.C. § 2255(f)(1) began to run. United States v.
Clay, 537 U.S. 522 (2003); United States v. Wilson, 256 F.3d 217, 221 (4th Cir. 2001). See 28
U.S.C. § 2255(f)(1). Limitations expired on or about May 22, 2008. However, Wright did not
file his Petition until August 3, 2015.

See ECF 32.

Therefore, his claim for ineffective

assistance of counsel is time-barred, unless there is a ground for equitable tolling.

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Equitable tolling is available in ―those ‗rare instances where—due to circumstances
external to the party's own conduct—it would be unconscionable to enforce the limitation against
the party and gross injustice would result.‘‖ Whiteside v. United States, 775 F.3d 180, 184 (4th
Cir. 2014) (en banc) (applying equitable tolling to one-year limitation period in 28 U.S.C. §
2255) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)) (additional citations
omitted); see Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2001); Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000); see also United States v. Oriakhi, 394 Fed. App‘x. 976, 977 (4th Cir.
2010) (per curiam). However, the doctrine is meant to apply only where there are ―extraordinary
circumstances.‖ Holland v. Florida, 560 U.S. 631, 634 (2010).
For relief under a theory of equitable tolling, an otherwise time-barred petitioner must
demonstrate ―‗(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way‘ and prevented timely filing.‖ Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

But, only ―‗reasonable

diligence‘‖ is required. Holland, 560 U.S. at 653 (citation omitted). There is no requirement for
―maximum feasible diligence.‖ (Citations and internal quotations omitted).
Ordinarily, a claim such as ineffective assistance of counsel does not warrant equitable
tolling. See Holland, 560 U.S. at 651-51; Harris, 209 F.3d at 328, 331 (denying equitable tolling
where attorney conceded that he gave petitioner ―erroneous‖ advice regarding the deadline for
filing his habeas petition). Nor is a petitioner's lack of familiarity with the law considered an
extraordinary circumstance warranting equitable tolling. See United States v. Sosa, 364 F.3d
507, 512 (4th Cir. 2004) (applying 28 U.S.C. § 2255). Rather, ―the one year limitation period is
... subject to equitable tolling in ‗those rare instances where—due to circumstances external to
the party's own conduct—it would be unconscionable to enforce the limitation against the

-8-

party.‘‖ Hill, 277 F.3d at 704 (quoting Harris, 209 F.3d at 330). Generally, there must be
evidence of some wrongful conduct by respondent that contributed to the delay in filing or
evidence that circumstances beyond the petitioner's control caused the delay, such that ―gross
injustice would result‖ in the absence of equitable tolling. Harris, 209 F. 3d at 330.
Holland, 560 U.S. 631, is instructive as to equitable tolling in the context of postconviction matters. Holland was a death-row inmate who filed a § 2244 federal habeas petition
five weeks after the limitations period had passed. Id. at 639. The limitations clock on Holland's
§ 2244 petition had been suspended while Holland's attorney pursued post-conviction relief in
state court. Id. at 636. While the state-court petition was pending, communications between
Holland and his attorney broke down entirely. Id. Nevertheless, Holland wrote letters reminding
his attorney of the importance of timely filing his § 2244 petition upon resolution of his statecourt petition. Id. at 637-38. Holland also performed legal research and provided his attorney
with the relevant limitations dates and deadlines. Id. at 639. Increasingly distressed by his
attorney's performance, Holland twice unsuccessfully asked the Supreme Court of Florida to
appoint new counsel for him. Id. at 636-37. While in the prison library Holland discovered on
his own that his state-court petition was unsuccessful in the Supreme Court of Florida, and that
the § 2244 one-year limitations period had subsequently run. He filed his own § 2244 motion the
very next day. Id. at 639.
The Supreme Court observed that the District Court had ―rested its ruling ... on a lack of
diligence—a ruling that respondent does not defend.‖ Id. at 653. It concluded that the District
Court was ―incorrect,‖ because Holland diligently pursued his rights by writing letters to the
lower court and to his unresponsive attorney, and by immediately filing his own motion when he
became aware of the disposition of his case. Id. Nevertheless, the Court remanded for a

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determination of whether the facts of the case ―constitute[d] extraordinary circumstances
sufficient to warrant equitable relief.‖ Id. at 653-54.
As noted, Wright‘s infective assistance of counsel claim was filed more than seven years
after the applicable deadline. In my view, Wright has not shown reasonable diligence or that any
extraordinary circumstances prevented him from discovering, ―through the exercise of due
diligence‖ the basis of his claims. 28 U.S.C. § 2255(f)(4). Therefore, I conclude that equitable
tolling does not apply here. Accordingly, the claim for ineffective assistance of counsel is timebarred.
C.
As noted, Wright‘s Johnson claim was timely filed. He asserts that he was denied his due
process rights pursuant to Johnson because a ―possession of cocaine charge‖ was used as a
predicate offense in the determination of his ACCA status. ECF 34 at 4. And, according to
Wright, the offense of possession of cocaine does not qualify as a ―serious drug offense.‖ Id. at
15.
In its Opposition, the government argues that Wright was not sentenced as an Armed
Career Criminal because he illegally possessed cocaine, but rather because of three prior ―serious
drug offenses.‖ ECF 37 at 3. The government also maintains that Johnson does not apply to
Wright‘s case ―because he was determined to be an Armed Career Criminal based on his prior
serious drug offenses, not violent felonies.‖ Id.
Pursuant to 18 U.S.C. § 924(e), an Armed Career Criminal is an individual who
violates 18 U.S.C. § 9(c)(2)(g), and who has three prior, distinct convictions for either a violent
felony or a serious drug offense, or both. By statute, a person who qualifies as an Armed Career
Criminal is subject to a mandatory period of imprisonment of not less than 15 years, in

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accordance with the ACCA, 18 U.S.C. § 924(e). Section 924(e)(1) of 18 U.S.C. states, in part:
―In the case of a person who violates § 922(g) of this title and has three previous convictions by
any court referred to in § 922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person shall be...imprisoned not
less than fifteen years....‖
At the time of Wright‘s State convictions, the operative law was found in Md. Code
(1957 Repl. Vol., 1999, 2001 Supp.), Art. 27, § 286.5 Section 286(a)(1) of Article 27 prohibited
the felony offenses of distribution of a controlled dangerous substance (―CDS‖) and possession
with intent to distribute CDS. The PSR reflects that Wright was previously convicted under
Maryland law of three separate felony drug offenses: distribution of cocaine; unlawful
manufacture of CDS (i.e., heroin); and possession under Maryland law of CDS with intent to
manufacture. Each of these three offenses constitutes a serious drug offense, as defined by the
ACCA.
In particular, the PSR reflects a 1989 conviction for distribution of cocaine, in Case No.
5881513, in the Circuit Court for Baltimore City. See ECF 39, ¶¶ 26-27. In addition, the PSR
reflects a 2002 conviction for the unlawful manufacture of a Controlled Dangerous Substance
(―CDS‖), i.e., heroin, in Case No. 102066021, in the Circuit Court for Baltimore City. Id., ¶ 31.
The conduct occurred on February 12, 2002. Id., ¶¶ 31-32. And, the PSR reflects another 2002
conviction for possession of CDS with intent to manufacture, Case No. 102141049, also in the
Circuit Court for Baltimore City. ECF 39, ¶ 34. That offense involved heroin and took place on
April 30, 2002. Id., ¶¶ 34-35. Finally, the PSR reflects that Wright was over the age of 18 at the
5

The Maryland Code was recodified in October 2002. Md. Code (2012 Repl. Vol., 2016
Supp.), §§ 5-602 and 5-608 of the Criminal Law Article (―C.L.‖) are the current relevant
sections.

-11-

time of his arrest for each of these distinct offenses. All three of these offenses are serious and
distinct drug offenses. In contrast, paragraphs 29, 30, and 33 of the PSR reflect convictions for
CDS possession offenses.
Section 924(e)(2)(A) defines the term ―Serious Drug Offense.‖ As defendant's prior
offenses are all under Maryland law, § 924(e)(2)(A)(ii) is relevant. It defines a serious drug
offense as ―an offense under State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten
years or more is prescribed by law[.]‖
Thus, in order to qualify as a serious drug offense, defendant‘s prior Maryland
convictions must have prescribed a potential maximum term of imprisonment of at least ten
years. Section 286(a)(1) of Article 27 prohibited the felony offenses of distribution of CDS and
possession with intent to distribute CDS. Section 286(b) established various penalties, and set a
penalty of imprisonment not exceeding 20 years for the first offense under § 286(a)(1), if it
involved a Schedule I or Schedule II narcotic drug. Article 27 § 277(f) defined ―controlled
dangerous substance.‖ The drugs that appeared on Schedule I and Schedule II were set forth in
Art. 27 § 279(a) and (b). Heroin is found in Schedule I, at Art. 27 § 279(a). Cocaine is designated
as a Schedule II substance. See C.L. § 5-403(b)(3)(iv); see also Hurt v. State, 2015 WL
5926870, at *4 (Md. Court of Special Appeals Sept. 4, 2015). Pursuant to these statutes, Wright
was subject to potential sentences of up to twenty years for each conviction outlined above.
In

view

of

the

foregoing,

Johnson

is

of

no

help

to

Wright.

This

is

because Johnson invalidated as unconstitutionally vague the Residual Clause of the ACCA
definition for ―violent felony.‖ Johnson, 135 S. Ct. at 2558. However, Wright was not found to

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be an Armed Career Criminal based on prior offenses that were deemed to be violent felonies.
Rather, he was determined to be an Armed Career Criminal based on three distinct, serious drug
offenses.
III.

Conclusion

For the reasons stated above, I shall DENY the Petition (ECF 32).
Unless a certificate of appealabilty (―COA‖) is issued, a petitioner may not appeal the
court's decision in a § 2255 proceeding.6 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b). A COA
may issue only if the petitioner ―has made a substantial showing of the denial of a constitutional
right.‖ 28 U.S.C. § 2253(c)(2) . The petitioner ―must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong,‖ Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (citation and internal quotation marks omitted), or that ―the
issues presented are adequate to deserve encouragement to proceed further,‖ Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
Because petitioner has not made a substantial showing of the denial of his constitutional
rights, I decline to issue a COA.
An Order follows, consistent with this Memorandum.

Date: June 8, 2017

/s/
Ellen Lipton Hollander
United States District Judge

6

The denial of a COA by the district court does not preclude a petitioner from seeking a
COA from the appellate court.
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