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Asmath v. United States

United States District Court, D. South Carolina, Beaufort Division

May 24, 2019

Marie Josee Asmath, Movant,
United States of America, Respondent.



         Movant Marie Asmath is an inmate in custody of the Bureau of Prisons. She seeks to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.

         I. BACKGROUND

         On December 12, 2001, a federal grand jury returned a two-count indictment, charging Movant with conspiracy to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (Count 1); and possession with intent to distribute fifty grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) (Count 2). On August 12, 2002, Movant proffered a guilty plea as to Count 1, ECF No. 66, and the government dismissed Count 2 pursuant to the terms of the plea agreement.

         The United States Probation Office (USPO) prepared a presentence investigation report (PSR), which noted that Movant has two felony convictions in Florida for aggravated assault and aggravated battery. Movant's criminal history score was four, to which two points were added because Movant committed the federal drug offenses while on probation for a January 1998 conviction. Movant's criminal history category was III. Also, because Movant has two prior felony convictions involving a crime of violence or a controlled substance offense, her criminal history category was deemed to be VI. See U.S.S.G. § 4B1.1.

         The PSR attributed 422 grams of cocaine base to Movant, for a base offense level of 34. Because Movant was considered to be a career offender, she received an adjusted offense level of 37. The PSR credited Movant with an adjustment for acceptance of responsibility, and Movant's adjusted offense level was reduced three levels to a total offense level of 34. Movant's guidelines range was 262 to 327 months of imprisonment. On January 14, 2003, the court sentenced Movant to incarceration for a period of 262 months. The court also sentenced Movant to a period of five years of supervised release. The court entered judgment on January 21, 2003, ECF No. 70, and the Court of Appeals for the Fourth Circuit affirmed. United States v. Asmath, 71 Fed.Appx. 984 (4th Cir. 2003). On June 4, 2012, Movant filed a § 2255 motion, ECF No. 116, which the court denied on December 20, 2012, ECF No. 133.

         Upon authorization by the Fourth Circuit, Movant filed through her attorney a successive § 2255 motion (“§ 2255 Motion”) on June 27, 2016. ECF No. 157. In the motion, Movant seeks the benefit of Johnson v. United States, 576 U.S. ____, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the “residual clause” of the Armed Career Criminal Act is unconstitutionally vague.[1] She argues that Johnson applies with equal force to the United States Sentencing Guidelines under which she was sentenced, and that her prior conviction for aggravated battery does not qualify as a predicate offense under the “residual clause” of U.S.S.G. § 4B1.2(a)(2).

         On July 11, 2016, the Government filed a motion to stay the matter pending a ruling in Beckles v. United States, 580 U.S. ____, 137 S.Ct. 886, 890 (2017). ECF No. 161. The court granted the motion and stayed briefing on the § 2255 motion. ECF No. 162. The Supreme Court issued a decision in Beckles on March 6, 2017. The court thereafter lifted the stay. ECF No. 163. On May 25, 2017, Movant filed pro se a motion seeking leave to file a second successive § 2255 motion, or to supplement the pending § 2255 Motion, to argue the applicability of Mathis v. United States, 136 S.Ct. 2243 (2016) (“Motion for Leave”). ECF No. 164. On June 21, 2017, the Government filed a motion to dismiss the § 2255 Motion and a memorandum in support of the motion. ECF Nos. 165, 165-1. On July 21, 2017, Movant through her attorney asked the court to stay the § 2255 Motion pending a decision by the Fourth Circuit in United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017). ECF No. 167. The court granted the motion and again stayed briefing. ECF No. 168.

         The Fourth Circuit issued a decision in Brown on August 21, 2017, and this court lifted the stay on January 29, 2018. ECF No. 171. Movant soon thereafter asked the court to stay the briefing schedule pending decision by the United States Supreme Court to accept or deny the petition for writ of certiorari filed in Brown. ECF No. 172. The court granted the motion and stayed briefing. ECF No. 174. The Supreme Court denied the petition for writ of certiorari on October 15, 2018. Brown v. United States, 139 S.Ct. 14 (2018). On November 13, 2018, the court lifted the stay in this matter and ordered Movant to file a response to the motion to dismiss, if at all, on or before November 26, 2018. ECF No. 178. Movant did not file a response. For the reasons discussed below, the § 2255 motions are denied and the motion to dismiss is granted.


         A. Legal Standard

         A federal prisoner in custody may challenge the fact or length of her detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that her 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. 28 U.S.C. § 2255(a). If this showing is made, the court must “vacate and set the judgment aside” and “discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate.” Id. at § 2255(b). If, on the other hand, “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, ” the court may summarily deny the petition without holding a hearing. 28 U.S.C. § 2255(b) (providing that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief); see Rule 4(b), Rules Governing Section 2255 Proceedings. Generally, when a movant attacks her sentence based upon errors that could have been but were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which she complains or she must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir. 1994).

         A movant must file a § 2255 motion one year from the latest of: 1) the date on which a judgment of conviction becomes final; 2) the date on which an impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the defendant was prevented from making a motion by such governmental action; 3) the date on which a 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. 28 U.S.C. § 2255(f). A judgment of conviction becomes final when the time for seeking review expires. Clay v. United States, 537 U.S. 522, 525 (2003).

         Additionally, a movant may not file a second or successive motion under § 2255 without first receiving certification by a panel of ...

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