The opinion of the court was delivered by: Hon. Jerome B. Simandle
This case comes before this Court on the motion of the United States to dismiss Petitioner's Motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons explained below, the Court shall grant the United States' motion and dismiss Petitioner's § 2255 petition.
Petitioner, Donald Stephen Johnson, was sentenced by the undersigned to a term of imprisonment of 132 months following the execution of a written plea agreement, under which Petitioner pled guilty to thirteen counts of bank robbery. Petitioner now brings this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that (1) he was erroneously classified as a "career offender" and (2) his trial counsel was constitutionally ineffective.
With regard to his first claim, Petitioner contends that "the two convictions used to form the basis for [Petitioner's] career offender status were consolidated for sentencing and therefore became related." (Pet'r Mot. at 3.) On the basis of this assertion, Petitioner argues that the two convictions and sentences "should have been counted as one" and hence failed to establish the "two prior felony convictions" necessary for a career offender classification. (Id.)
On Petitioner's second contention, he claims that his trial attorney failed to render effective assistance because he did not "follow-up on client's insistence that [Petitioner] should not be classified as a career offender." (Id. at 5.) Petitioner maintains that:
Trial counsel knew or should have known that his failure to properly investigate those matters which gave rise to the "career offender" status could and did mandate that [Petitioner] receive a higher criminal history category and offense level. Further, this action or inaction affected the length of sentence for the offense level the court used to depart downward.
The Court shall deny this petition in its entirety because Petitioner knowingly and voluntarily waived his right to file a habeas petition and expressly stipulated to the "career offender" classification in his plea agreement. Furthermore, for the reasons explained below, even if the Court were to address Petitioner's claims, they would fail on the merits.
This matter first came before this Court on November 23, 2004 upon Petitioner's guilty plea on a two-count Information that charged him with two bank robberies. In addition, an eleven-count District of Maryland Information that charged him with eleven bank robberies was sent to this Court pursuant to Rule 20 of the Federal Rules of Civil Procedure. Petitioner waived his right to have that Information venued in Maryland. (Rule 11 Hr'g at 5, Ex. F to Resp't Br.) Petitioner pled guilty to both Informations before this Court. (Written Plea Agreement at 1, Ex. E to Resp't Br.) In his guilty plea, Petitioner stipulated that he is "a career offender" and his criminal history category placed him in "Category VI." (Id. at 8.) Specifically, stipulation 7 of Schedule A of the written plea agreement dated August 26, 2004 states, "Donald Stephen Johnson is a career offender under U.S.S.G. § 4B1.1. Accordingly, Donald Stephen Johnson's criminal history category is a Category VI."
The Court engaged in an extensive colloquy with Petitioner before accepting his guilty plea. After Petitioner initially indicated that he was not willing to stipulate to the career offender classification as agreed to in the written plea, the Court recessed to give him time to confer with his attorney, Michael Milstead, Esquire. Petitioner initially thought that his prior state convictions were not to be counted separately for purposes of evaluating his criminal history. Upon counsel's explanation that the two crimes were in fact separate offenses and treated as such for the purpose of evaluating his criminal history category, Petitioner stated that he understood the source of his confusion and proceeded to enter his guilty plea with that understanding. (Rule 11 Hr'g at 42-43, Ex. F to Resp't Br.) In the subsequent colloquy after the Court reconvened, Petitioner stated his agreement that he is a career offender under the Guidelines. (Rule 11 Hr'g at 42-43, Ex. F to Resp't Br.) The plea agreement also provided that Petitioner was accountable for all thirteen bank robberies, resulting in an offense level of thirty-three pursuant to United States Sentencing Guidelines ("U.S.S.G.") §§ 2B3.1, 3D1.2, and 3D1.4. The parties stipulated that Petitioner would receive a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and an additional decrease of one level pursuant to U.S.S.G. § 3E1.1(b) for timely assisting authorities in the investigation or prosecution of his misconduct. These reductions were conditioned upon Petitioner's continued acceptance of responsibility and resulted in a total offense level of thirty.
Additionally, Petitioner voluntarily waived the right to collaterally attack his sentence under 28 U.S.C. § 2255, provided that the total offense level determined by the Court was equal to or less than thirty.*fn1
Thereafter, the United States Probation Office ("Probation") prepared a Presentence Investigation Report ("Presentence Report"), which corresponded with the parties' stipulation of a total offense level of thirty. Furthermore, Probation found that Petitioner had amassed sixteen criminal history points, resulting in a Criminal History Category VI. Additionally, the Presentence Report found that due to his prior offenses for crimes of violence described below, Petitioner met the criteria of a "career offender," which put him, independently, within Criminal History Category VI.
Prior to committing the thirteen bank robberies in this case, Petitioner sustained nine convictions as an adult in Virginia and Maryland - two were determined to qualify as predicate offenses for the "career offender" classification. The first took place on October 23, 1997, when he was arrested and charged with first degree robbery with a deadly weapon, second degree assault, and other crimes, for robbing a restaurant with a knife and escaping in a stolen vehicle ("restaurant assault"). (Presentence Report at 27.) On June 18, 1998, the Circuit Court of Baltimore City found Petitioner guilty of assault and sentenced him to two years of imprisonment. (Id.) The second predicate conviction was for robbery with a deadly weapon when he threatened a convenience store clerk with a knife and took money from the cash register ("store robbery"). ...