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Calloway v. United States

United States District Court, M.D. Alabama, Northern Division

February 13, 2018

MARKEVIUS JERRELL CALLOWAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE.

         Markevius Jerrell Calloway (“Calloway”) is before the court on a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1.[1]

         I. BACKGROUND AND PROCEDURAL HISTORY

         On August 13, 2013, Calloway pleaded guilty under a plea agreement to conspiring to possess with intent to distribute 280 grams or more of cocaine, in violation of 21 U.S.C. §§ 846 & 841(a)(1) (Count 1); possessing cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (Count 17); and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 36).[2] See Doc. No. 17-1. The plea agreement contained an appeal/post-conviction waiver on sentencing issues, with exceptions for claims of ineffective assistance of counsel and prosecutorial misconduct. See Doc. No. 7-6 at 5-6. Following a sentencing hearing on December 17, 2013, the district court sentenced Calloway to 147 months in prison, comprising concurrent terms of 87 months on Counts 1 and 17 and a consecutive term of 60 months on Count 36. See Doc. No. 1-2 at 1-2. The district court entered the judgment on December 24, 2013. Id. at 1.

         Calloway did not file a timely appeal. However, on November 3, 2014 (over 10 months after he was sentenced), Calloway filed a pro se motion for an extension of time to file notice of appeal. Doc. No. 7-10. The district court denied that motion on November 5, 2014, finding that Calloway had provided no legal basis for an extension of time. Doc. No. 7-11.

         On November 7, 2014, Calloway filed a second pro se motion for an extension of time to file an appeal, this time alleging that his trial counsel failed to file an appeal on his behalf despite his instruction that counsel do so. Doc. No. 7-12. The district court denied Calloway's motion on January 16, 2015, noting in its order that the proper method for Calloway to raise his counsel's failure to file an appeal was in a motion for relief under 28 U.S.C. § 2255. Doc. No. 7-13.

         Over nine months later, on October 21, 2015, Calloway, proceeding pro se, filed this motion for relief under 28 U.S.C. § 2255 presenting claims that (1) his trial counsel was ineffective for failing to file an appeal as instructed; (2) he is actually innocent of the conspiracy count because the drug conspiracy involved less than 280 grams of cocaine, and his counsel was ineffective for failing to challenge the drug amount attributed to him and for allowing him to plead guilty to the conspiracy count; (3) the district court erred in applying a drug-house enhancement under the Sentencing Guidelines, and his counsel was ineffective for failing to challenge the enhancement; (4) he is actually innocent of the § 924(c) count to which he pleaded guilty, and his counsel was ineffective for allowing him to plead guilty to that count; and (5) the district judge who sentenced him engaged in judicial misconduct involving racial discrimination by imposing harsher sentences against African Americans, and his counsel was ineffective for failing to raise this issue. Doc. No. 1 at 4-8; Doc. No. 2 at 2-8.

         In a response filed on December 24, 2015, the Government argued that Calloway's § 2255 motion is untimely under the one-year limitation period in 28 U.S.C. § 2255; that his allegations of actual innocence lack merit; and that his claims challenging his sentence are barred under the waiver provision in his plea agreement. Doc. No. 7.

         On June 17, 2016, Calloway file a pro se amendment to his § 2255 motion asserting that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), invalidates his § 924(c) conviction for possessing a firearm in furtherance of a drug trafficking crime. Doc. No. 13. The Government filed a response arguing that Johnson is inapplicable to Calloway's § 924(c) conviction and that Calloway's claim was untimely raised in his amendment. Doc. No. 17.

         On August 31, 2016, the District's Federal Defender Organization, [3] filed a “Reply to Government's Response” on Calloway's behalf, arguing that the district court should have treated Calloway's pro se motion for an extension of time to file an appeal-filed by Calloway on November 7, 2014-as a motion for relief under 28 U.S.C. § 2255 seeking an out-of-time appeal on the ground Calloway's trial counsel was ineffective for failing to file an appeal for Calloway despite being instructed to do so. Doc. No. 19. The Federal Defender argued that Calloway therefore filed a timely § 2255 motion on November 7, 2014, and that this court should hold an evidentiary on his claim in that motion that his counsel was ineffective for failing to file an appeal as instructed. Id. at 4-8.

         The Government filed a response to the Federal Defendant's Reply, arguing that the district court did not err by failing to treat Calloway's pro se motion for an extension of time to file an appeal as a motion for relief under 28 U.S.C. § 2255 and that, in any event, the challenge to the district court's failure to recharacterize Calloway's pro se motion was untimely. Doc. No. 21.

         On June 28, 2017, Calloway file a pro se amendment to his § 2255 motion, asserting that (1) the district court should resentence him based on Dean v. United States, 137 S.Ct. 1170 (2017), so that his 60-month sentence for his § 924(c) conviction runs concurrently with his sentence for his other convictions; and (2) under a decision by the Ninth Circuit Court of Appeals in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), his § 924(c) conviction is invalid. Doc. No. 27. The Government filed a response to Calloway's amendment arguing that his new claims were untimely raised and, in any event, lacked merit. Doc. No. 29.

         For the reasons that follow, it is the recommendation of the magistrate judge that Calloway's § 2255 motion be denied without an evidentiary hearing and this case be dismissed with prejudice.

         II. DISCUSSION

         A. AEDPA's One-Year Limitation Period

         The Government argues that Calloway's § 2255 motion is time-barred under the one-year limitation period in 28 U.S.C. § 2255(f) and that, because his § 2255 motion is time-barred, all claims raised in his amendments to the ...


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