Glascoe v. USA - 2255

Filing 3

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 9/28/2017. (c/m 09/29/2017 - jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ANTIONE GLASCOE,
Petitioner
v.
UNITED STATES OF AMERICA
Respondent

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Crim. No.
Civil No.

PJM 12-0132
PJM 16-2188

MEMORANDUM OPINION
Antione Glascoe, through counsel, has filed a Motion to Correct Sentence Under 28
U.S.C. § 2255. ECF No. 84. For the reasons stated below, the Court DENIES his Motion.
On October 4, 2012, Glascoe pled guilty to one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g). On January 30, 2013, this Court sentenced
Glascoe to a term of 87 months imprisonment after finding that he had two prior convictions that
qualified as “crimes of violence” under U.S.S.G. § 4B1.2(a), which in turn resulted in a ten-level
sentencing offense level increase under U.S.S.G. § 2K2.1(a)(2). Specifically, the Court found
that Glascoe had a second degree assault conviction and a resisting arrest conviction, both of
which qualified as “crimes of violence.”
On January 31, 2014, Glascoe filed a Motion for Writ of Habeas Corpus under 28 U.S.C.
§ 2255, alleging ineffective assistance of counsel because his trial attorney failed to file a notice
of appeal. ECF No. 45. The Court appointed Glascoe counsel and, on July 30, 2015, Glascoe’s
counsel filed a “Second Supplemental Memorandum” in support of his First Motion to Vacate.
ECF No. 64. In addition to discussing the ineffective assistance of counsel claim that was the
subject of the First Motion to Vacate, the Second Supplemental Memorandum also raised
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grounds for relief under recent Supreme Court cases Johnson v. United States, __ U.S. __, 135 S.
Ct. 2551 (2015), and Descamps v. United States, __ U.S. __, 133 S. Ct. 2276 (2013). These
grounds for relief were not raised in either Glascoe’s First Motion to Vacate, ECF No. 45, or his
filings attendant thereto, ECF Nos. 47, 53.
After an evidentiary hearing, the Court denied his First Motion to Vacate with regard to
the ineffective assistance of counsel claims but severed the Second Supplemental Memorandum,
construing it as a Second Motion to Vacate under § 2255 because of the new grounds claimed
under Johnson and Descamps. ECF No. 72. It was designated the Civil Case No. 15-2423. ECF
No. 71.
On February 29, 2016, the Office of the Federal Public Defender notified Chief Judge
Blake of the District Court of Maryland that Glascoe was one of 459 defendants it had identified
as possibly being eligible for relief under 28 U.S.C. § 2255 on the grounds that the new rule of
constitutional law announced in Johnson, held to apply retroactively to cases on collateral review
by Welch v. United States, 136 S. Ct. 1257 (2016), might apply to his case. ECF No. 82. Chief
Judge Blake agreed and appointed the Federal Public Defender to assist Glascoe in preparing
another § 2255 proceeding. Id.
Glascoe then filed a motion pursuant to 28 U.S.C. §§ 2244, 2255(h) in the Fourth Circuit
Court of Appeals for authorization to file a second or successive § 2255 motion. ECF No. 83. On
June 17, 2016, the Fourth Circuit granted him authorization (id.), and on the same day, the
Federal Public Defender filed the present motion as a separate civil suit. ECF No. 84.
Glascoe argues that, in light of the Supreme Court’s recent decision in Johnson, his prior
convictions for second degree assault and resisting arrest are no longer “crimes of violence.” In
Johnson, the Supreme Court struck down the Armed Career Criminal Act’s (“ACCA”) residual

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clause (18 U.S.C. § 924(e)(2)(B)(ii)) as unconstitutionally vague. 135 S. Ct. at 2557. Glascoe
argues that it follows from Johnson that the identical residual clause in the career offender
provision of the Sentencing Guidelines (U.S.S.G. § 4B1.2(a)(2)) is also void for vagueness.
However, on March 6, 2017, the Supreme Court held in Beckles v. United States, __ U.S.__, 137
S. Ct. 886 (2017) that Johnson does not apply to U.S.S.G. § 4B1.2(a)(2) because, unlike the
ACCA, the Guidelines are advisory only. Thus, challenges under § 2255 to sentences imposed
under the sentencing guidelines are not subject to Johnson challenges.
Since Glascoe’s Motion rests entirely on the argument that Johnson applies to his claim,
the Court DENIES his Motion to Correct Sentence Under 28 U.S.C. § 2255.
A separate Order will ISSUE.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
September 28, 2017

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