Whyte v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 4/19/2018. (c/m 4/19/18 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
iO)

GREGORY A. WHYTE,

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Petitioner,

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Criminal No. RDB-l0-0212

v.

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Civil Action No. RDB-17-0414

UNITED STATES OF AMERICA,

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Respondent.

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MEMORANDUM

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OPINION

On September 21, 2010, a jury convicted Petitioner Gregory Whyte ("Petitioner" or
"Whyte") of one count of conspiracy to possess with intent to distribute cocaine, in violation
of 21 USc.

~ 846, and one count of attempt to possess with intent to distribute cocaine, as

well as aiding and abetting such conduct, in violation of 21 U.S.c. ~ 846 and 18 U.S.c. ~ 2,
respectively. (ECF No. 90.) On January 31, 2011, this Court sentenced Whyte to two
hundred and sixty-four (264) months of imprisonment.

(Id.) Whyte subsequently filed a

motion for post-conviction

relief pursuant to 28 USc.

~ 2255, claiming his counsel was

ineffective for failing to communicate the Government's

offer of a plea bargain. (ECF No.

159.) This Court granted the motion, and on April 1,2014 re-sentenced Whyte to a prison
term of one hundred

and fifty-one (151) months

and entered an amended judgment

dismissing the count of attempting to possess with intent to distribute cocaine, and aiding
and abetting such conduct.

(ECF Nos. 163, 165.)

1

Presently before this Court is Petitioner's second Motion to Vacate, Set Aside or
Correct Sentence under 28 U.s.c. ~ 2255 (ECF No. 196), and Government's

Motion to

Dismiss Petitioners Motion for Post-Conviction Relief (ECF No. 198). For the following
reasons, Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.c. ~
2255 (ECF No. 196) is DENIED; and Government's Motion to Dismiss Petitioners Motion
for Post-Conviction Relief (ECF No. 198) is GRANTED.

BACKGROUND
The facts of this case were detailed at length 1n this Court's April 19, 2013
Memorandum

Opinion, W0Jte v. United States, RDB-12-1141, 2013 WL 1721736 (D. Md.

Apr. 19,2013), and are briefly summarized herein. On April 27, 2010, Petitioner Whyte was
indicted on three counts of conspiring to distribute cocaine. (ECF No. 1.) The charges
stemmed from an incident in May of 2009, when Drug Enforcement Administration agents
in Los Angeles intercepted a large shipment of cocaine that was to be sent to Baltimore,
Maryland. (presentence Report at 3.) Whyte was subsequently identified as the leader and
organizer of the transaction. (Id. at 5.)
On September 21, 2010, a jury found Whyte guilty on one count of conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.c. ~ 846, and one count of
attempt to possess with intent to distribute cocaine, as well as aiding and abetting such
conduct, in violation of 21 U.s.c. ~ 846 and 18 U.S.c. ~ 2, respectively. (ECF No. 90.)
Subsequently, on January 31, 2011, this Court sentenced Whyte to a prison term of 264
months. (Id.) On appeal to the United States Court of Appeals for the Fourth Circuit, the

2

court affIrmed Whyte's convictions.

United States v. Wf.yte, No. 11-4187,460

Fed. App'x 236,

238 (4th Cit. Jan. 3, 2012).
On April 13, 2012, Whyte filed a motion for post-conviction

u.s.c. ~ 2255,
Government's

alleging that trial counsel was ineffective

relief pursuant to 28

for failing to communicate

the

offer of a plea bargain.1 (ECF No. 132.) This Court subsequently granted the

motion, explaining that "[i]n light of the complete

absence in Trial Counsel's

file of any

evidence even hinting that the plea offer was relayed to Petitioner, this Court concludes that
Trial Counsel's performance

was deficient."

Wf.yte v. United States, RDB-12-1141,

2014 WL

279688, at *6 (D. Md. Jan. 24, 2014). Accordingly, this Court vacated Whyte's sentence and
mandated that re-sentencing

be conducted in accordance with the terms of the plea bargain.

(!d.) On April 1, 2014, this Court re-sentenced

Whyte to a prison term of 151 months and

entered an amended judgment dismissing the count of attempting

to possess with intent to

distribute cocaine, and aiding and abetting such conduct. (ECF No. 163.) At re-sentencing,
this Court "essentially"
initial sentencing.2

used the same presentence

report as the one used during Whyte's

(ECF No. 172 at 9.) Additionally, Whyte acknowledged

that he had seen

this presentence report before during his original sentencing. (Id.)
Approximately
appeal

as to the

subsequently

two months later, on May 30, 2014, the Government
amended

judgment.

filed an unopposed

(ECF

motion

No.

168.) However,

to withdraw

its appeal.

filed a notice of
the
(ECF

Government
No.

174.)

The offer stipulated a sentence of ten (10) years, which would have allowed Petitioner to avoid the
enhanced mandatory minimum sentence of twenty (20) years under 21 U.S.c. ~ 851 due to Petitioner's
previous felony drug convictions. (ECF No. 159.)
2 The record reflects that the same presentence report was used during re-sentencing, with notes indicating
the terms that had changed.
1

3

Accordingly, the appeal was dismissed on October 8, 2014.3 (Id.) On January 27, 2015,
Whyte filed a motion for a sentence reduction under 18 U.S.c. ~ 3582(c)(2), which was
denied by this Court on December 20,2016.4 (ECF Nos. 181, 192.)
On February 23, 2017, Whyte flied the present Motion to Vacate under 28 U.S.c. ~
2255, claiming ineffective assistance of counsel. (ECF Nos. 196, 200.) Approximately two
months later, on April 24, 2017, the Government filed a Motion to Dismiss Whyte's ~ 2255
Motion.

(ECF No.

198.)

Finally, on May 26, 2017, Whyte

filed a supplemental

memorandum is support of his ~ 2255 motion. (ECF No. 200.)

STANDARD OF REVIEW
This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal
construction.

See Erickson v. ParduJ, 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. Hi!! v. United States, 368 U.S. 424 (1962) (citing 28 U.S.c. ~ 2255). Further,."an error
of law does not provide a basis for collateral attack unless the claimed error constituted 'a

The Fourth Circuit's order dismissing the Government's appeal was fued on October 7, 2014 and entered
on October 8, 2014. (ECF No. 174.)
4 In support
of his ~ 3582(c)(2) motion, Whyte argued that his sentence should be reduced because of the
retroactive application of Amendment 782 to the United States Sentencing Guidelines. (ECF No. 195.) On
July 8, 2014, the United States Sentencing Commission voted to make Amendment 782 retroactively
applicable to previously sentenced petitioners, pursuant to 28 U.s.c. ~ 994(u). (Id.) However, because Whyte
was given the benefit of Amendment 782 during his re-sentencing, this Court denied his ~ 3582(c)(2) motion.
3

(Id.)
4

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).

ANALYSIS
The sole claim in Whyte's present ~ 2255 motion is that his counsel at re-sentencing
was ineffective for "fail[ing] to object to this Court's mistaken inclusion of the U.S.S.G.
Manual ~ 3B1.1(c) leadership enhancement in [his] sentencing guidelines range calculation."
(ECF No. 200 at 1.) Section 3B1.1(c) of the Federal Sentencing Guidelines provides that
"[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity
other than described in (a) or (b), increase by 2 levels." U.S.S.G. 3B1.1. In general, (a) and
(b) provide for offense level increases based on a defendant's leadership role for "criminal
activity that involved five or more participants or [that] was otherwise extensive." Id. For the
following reasons, Whyte's claim is untimely, not subject to equitable tolling, and without
merit.

I.

Petitioner's Motion is Untimely
A. Petitioner Did Not File His Motion Within the One-year Statute of
Limitations
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.
5

Id.
The Government avers that the one-year limitations period started to run on the date
Whyte's judgment of conviction became final. (ECF No. 198 at 9.) Finality for the purpose
of 28 U.S.c. ~ 2255(£)(1) attaches when the opportunity to appeal expires. See Clqy v. United
States, 537 U.S. 522, 524-25 (2003); United States v. Sosa, 364 F.3d 507, 509 (4th Cir. 2004).
Because the Government

filed a notice of appeal, Whyte's conviction became final fourteen

days after the notice of appeal, which was filed on May 30, 2014.5 See Fed. R. App. P.
4(b)(1)(A) (providing fourteen days to file an appeal). Under the facts presented, Whyte's
limitations period started to run on or around June 13, 2014, and expired one year later on
June 13, 2015.6
approximately

When Whyte filed the present ~ 2255 motion on February, 23, 2017,

twenty months had already elapsed since the expiration of the one-year

limitations period. Whyte counters with two arguments in support of his position that this
Court should consider his Motion as timely filed.
First, Whyte claims that this Court should construe his present ~ 2255 motion as
constructively filed on January 27, 2015, the day that he filed his ~ 3582(c)(2) motion. (ECF

The Government claims that Whyte's conviction became final on April 15, 2014, or fourteen days after
entry of judgment, citing that Fed. R. App. P. 4 (b)(1)(A) "requir(es] defendant[s] to file an appeal within
fourteen days of judgment." (ECF No. 198 at 9.) However, in its entirety, Fed. R. App. P. 4(b)(I)(A)
provides that "a defendant's notice of appeal must be filed in the district court within 14 days after the later
of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government's
notice of appeal."
6 Even if this Court were to liberally consider
an extension of Whyte's date of fmality because the
Government filed a notice of appeal, Whyte's ~ 2255 motion would still be untimely. See United States v. Dorsey,
988 F. Supp. 917, 919 (D. Md. 1998) ("judgment of conviction becomes 'final,' for purposes of a 2255
motioll, all th~ datt' that a petitioner can no longer pursue direct appeal").
To demonstrate, the
Government's appeal was dismissed by the Fourth Circuit on October 8, 2014. (ECF No. 175.) Accordingly,
the conviction became final on or around January 6, 2015, or 90 days after the Fourth Circuit entered
judgment. United States v. SOJa, 364 F.3d 507, 509 (4th Cir. 2004). The one-year limitations period would end
one year after that date or on or around January 6, 2016. Whyte filed the present ~ 2255 motion on February
23, 2017, well after the expiration of the one-year limitations period ended on or around January 6, 2016.
5

6

Nos. 196-1 at 3; 200 at 11-12.) In support, he argues that (1) he would have filed the present
~ 2255 motion in place of his earlier ~ 3582(c)(2) motion if he had known certain facts, and
(2) the ~ 2255 motion and ~ 3582(c) motion essentially argue the same thing, which is that
his offense level calculation is two-levels too high. (Id.) Fitst, the arguments presented in the
two motions are distinct from one another given that his ~ 3582(c)(2) motion concerned
Amendment

782 to the United States Sentencing Guidelines. Second, as discussed below,

Whyte had knowledge of relevant facts necessary to file the instant ~2255 motion.
Second, Whyte argues that the one-year limitations period began to run when the
facts supporting his ~ 2255 motion could have been discovered through the exercise of due
diligence. See 28 u.s.e

~ 2255(£)(4). Section 2255(£)(4) "resets the limitations period's

beginning date, moving it from the time when the conviction became final, to the later date
on which the particular claim accrued." Id. (internal citation omitted). "Time begins when
the prisoner knows (or through diligence could discover) the important facts, not when the
prisoner recognizes their legal significance." Whiteside v. United States, 775 F.3d 180, 184 (4th
Cit. 2014) (en bane) (quoting Owens v. Bqyd, 235 F.3d 356, 359 (7th Cit. 2000».
Whyte asserts that he did not discover the facts giving rise to his ~ 2255 motion until
"early 2016 or the [s]pring thereof." (ECF No. 200 at 14.) Specifically, he contends that he
did not know "that this Court had imposed the ~ 3B 1.1 enhancement"
Title 18 u.S.e[A].

~ 3582(c)(2) Motion, and ...

until he filed "his

the Office of the Federal Public Defender

("OFPD") provided him with a copy of his sentencing transcripts." (Id. at 13; ECF No. 1961 at 2.) However, Whyte was present during his re-sentencing, when the U.S.S.G. ~ 3B1.1(c)
enhancement was discussed and imposed. (ECF No. 172.) While this enhancement was not

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actually referred

to as a "~ 3B 1.1 (c)" enhancement

confm:ned that Whyte had "previously

seen the presentence

counsel.7 (ECF No. 172 at 9.) The presentence
organizer/leader

during the re-sentencing,

during the commission

report"

this Court

and reviewed it with

report then stated that Whyte "was an

of the instant offense of conviction

[and] ....

[p]ursuant to U.S.S.G. ~ 3B1.1(c), the offense level is increased two levels." (presentence
Report at ~ 21.) Moreover, Whyte was also aware that this enhancement

was imposed during

his original sentencing in 2011. Accordingly, Whyte may not rely on 28 U.S.c. ~ 2255(f)(4) to
set the date for running the one-year limitations period because already he had knowledge of
the facts supporting his claim. Therefore, Petitioner's Motion is untimely.

B. Equitable Tolling is Not Justified
Since Whyte's

~ 2255 motion

was untimely

flied, it must be dismissed

unless

principles of equitable tolling apply. See Holland v. Flon'da, 560 U.S. 631, 649-54 (2010); Rouse
v. Lee, 339 F.3d 238, 246-47 (4th Cir. 2003) (en banc). To be entitled to equitable tolling, the

petitioner must show (1) that he has acted with "reasonable diligence" in pursuing his rights,
and (2) that some extraordinary

circumstance

prevented

timely filing. Holland, 560 U.S. at

649; see also United States v. PreJ?YJtt,221 F.3d 686, 688 (4th Cir. 2000) (equitable tolling should
be "sparingly granted").
Unless the circumstances

are "extraordinary,"

a claim alleging ineffective assistance of

counsel will not typically justify the principles of equitable tolling. Holland, 560 U.S. at 652;
Hams

v. Hutthinson, 209 F.3d 325, 328, 331 (4th Cir. 2000) (denying equitable tolling where

attorney conceded

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that he gave petitioner

"erroneous"

advice regarding the deadline for

When imposing the enhancement, this Court referenced paragraph twenty-one of the presentence report.

(ECF No. 172 at 38.)

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filing his habeas petition). A petitioner's lack of familiarity with the law also is not generally
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).
Whyte generally argues that he is entitled to equitable tolling because the private
counsel who represented him at re-sentencing was going to charge him to review documents
and determine whether "his [offense level] was two levels too high." (ECF No. 200 at 16.)
Specifically, Whyte claims that "when he complained [to re-sentencing counsel] that the
Court had failed to provide him with the [Amendment] 782 reduction, she should have
consulted her notes and informed Mr. Whyte (free of charge) that the Court had [added a
leadership enhancement pursuant to ~ 3B1.1(c).]" (Id. at 16-17.) Accordingly, Whyte claims
that while he tried to obtain his transcripts from the Office of the Clerk, he could not afford
them so he reviewed the judgment and incorrectly filed the ~ 3582(c)(2) motion instead of
the present ~ 2255 motion. (Id. at 17-18.)
As discussed infra, Whyte was present

at his re-sentencing

and reviewed the

presentence report. Therefore, Whyte was on notice of the leadership enhancement even if
he did not have transcripts from re-sentencing.

Moreover, the transcript of Petitioner's re-

sentencing was in fact filed on January 17, 2014, over a year before the limitations period
expired on June 13, 2015. Accordingly, the circumstances do not justify equitable tolling of
the limitations period, Petitioner's Motion is untimely, and the Government's

Motion to

Dismiss Petitioners Motion for Post-Conviction Relief (ECF No. 198) is GRANTED.
II.

Petitioner's Motion is Meritless

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Even if Whyte's Motion was timely, his Motion is meritless.
relief based on a Sixth Amendment
must satisfy the two-prong

To state a claim for

claim of ineffective assistance of counsel, a petitioner

test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984);

see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2013) (holding that "[t]he defendant
bears the burden of proof as to both prongs of the standard"). The fIrst, or "performance,"
prong of the test requires a showing that defense counsel's representation
fell below an "objective standard of reasonableness."
this determination,

courts apply a strong presumption

was defIcient and

Strickland, 466 U.S. at 688. In making
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 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.
Whyte claims that "[c]ounsel's performance
reasonableness

clearly fell below an objective standard of

when counsel failed to object to this Court's obvious erroneous inclusion of

the ~ 3B1.1(c)'s leadership enhancement."
leadership enhancement
erred by re-sentencing

(ECF No. 196-1 at 14.) Whyte asserts that the

was not in the terms of the plea bargain, and accordingly this Court
him in accordance

with the enhancement.

agreement states that

10

(Id.) However, the plea

The Defendant understands that the Court will determine a sentencing
guidelines range for this case (henceforth the "advisory guidelines range")
pursuant to the Sentencing Reform Act of 1984 at 18 U.S.c. ~~ 3551-3742
(excepting 18 U.S.c. ~~ 3553(b)(1) and 3742(e)) and 28 U.S.c. ~~ 991 through
998. The Defendant further understands that the Court will impose a sentence
pursuant to the Sentencing Reform Act, as excised, and must take into
account the advisory guidelines range in establishing a reasonable sentence.
(ECF No. 196-3 at ,-r5.)
First, Whyte's counsel did object to the application of the leadership enhancement
during his original sentencing. (ECF No. 115 at 21 (This Court "not(ing] the objections
which have been raised, particularly in terms of the matter of leadership role .... ").) In
response, this Court noted that witnesses at Whyte's trial had testified that Whyte was in fact
the organizer or leader of the offense. (Id. at 28.) Subsequently at Whyte's re-sentencing, his
counsel reasonably decided to "not disput(e] the leadership role" because of the facts found
during the initial trial. (ECF No. 172 at 28.) Accordingly, this Court did not erroneously
impose the leadership enhancement,

and at re-sentencing

counsel was required to make. Therefore,

there was no objection that

even if Petitioner's

ineffective assistance of counsel claim is without merit.

Accordingly, Whyte's Motion to

Vacate, Set Aside, or Correct Sentence (ECF No. 124) is DENIED
Motion to Dismiss Petitioners

Motion

Motion was timely, his

for Post-Conviction

and the Government's

Relief (ECF No. 198) is

GRANTED.

CONCLUSION
For the reasons stated above, Petitioner's Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.c. ~ 2255 (ECF No. 196) is DENIED;

and Government's Motion to

Dismiss Petitioners Motion for Post-Conviction Relief (ECF No. 198) is GRANTED.

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•

Pursuant to Rule ll(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 Cit.
2007). A certificate of appealability may issue "only if the applicant has made a substantial
showing of the denial of a constitutional
denies petitioner's
that reasonable
debatable

right." 28 U.S.c. ~ 2253(c) (2). Where the court

motion on its merits, a petitioner satisfies this standard by demonstrating
jurists would

find the court's

assessment

of the constitutional

claims

or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-EI v.

Cockrell, 537 U.S. 322, 336-38

(2003). Because reasonable

jurists would not find Whyte's

claims debatable, a certificate of appealability is DENIED.
A separate Order follows.

Dated: April 19, 2018
Richard D. Bennett
United States District Judge

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