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Mardis v. United States

United States District Court, S.D. Indiana, Indianapolis Division

September 12, 2018

KENDLE MARDIS, Petitioner,




         This matter is before the Court on a Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Kendle Mardis (“Mardis”). For the reasons explained in this Order, the motion is denied and dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.


         A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the 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). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).


         On September 17, 2014, Mardis was charged in a three-count multi-defendant Superseding Indictment, United States v. Perez-Garcia et al., No. 1:14-cr-00068-TWP-DKL-5 (hereinafter “Crim. Dkt.”), dkt. 90 (S.D. Ind. Sept. 17, 2014). Mardis was charged in count one with conspiracy to possess with intent to distribute and to distribute controlled substances, including 1, 000 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), 846.

         On August 31, 2015, with the assistance of counsel, Mardis filed a petition to enter a guilty plea. Crim. Dkt. 224. A plea agreement was docketed on August 26, 2015. Crim. Dkt. 219; Crim. Dkt. 220 (sealed addendum); Crim. Dkt. 221 (stipulated factual basis). The plea agreement, entered pursuant to Fed. R. Crim. P. 11(c)(1)(B), provided that Mardis would plead guilty to count one of the superseding indictment. Crim. Dkt. 219 at 1. The plea agreement explained that Mardis' drug offense under count one is punishable by a sentence of no more than 20 years' imprisonment; a fine of not more than $1, 000, 000, and a period of supervised release of not less than two years following any term of imprisonment. Id.

         The parties did not stipulate as to terms of his sentence. Rather, Mardis agreed and stated that he understood that the Court would use its discretion to fashion a sentence within the statutory ranges. Id. at 2. He also agreed and understood that the Court would take into account the Sentencing Guidelines in determining the appropriate sentence within the statutory range, but that the Sentencing Guidelines are only advisory in nature, and thus the final determination of the sentence would be made by the Court. Id.

         Mardis waived his right to appeal or otherwise challenge his conviction or sentence, except that the appellate waiver did not encompass claims that he received ineffective assistance of counsel. Id. at 3.

         In the plea agreement, Mardis stipulated that he was a career offender within the meaning of United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1, and as such, his base offense level was 32. Id. at 4. The parties also stipulated that he was entitled to a three level reduction pursuant to U.S.S.G. § 3E1.1. Id.

         In preparation for sentencing, the United States Probation Office prepared a presentence report (PSR). See Crim. Dkt. 266. Under U.S.S.G. § 2D1.1, it was determined that Mardis' base offense level was 28. Id. ¶ 21. His offense level was increased to 32 because Mardis was a career offender. Id. ¶ 27. The prior convictions that qualified as “prior felony convictions” included: (1) a 2006 Ohio felony conviction for trafficking cocaine, Dkt. 01CR5241; (2) a 2006 Ohio felony conviction for aggravated assault, Dkt. 05CR7878; (3) a 2008 Ohio felony conviction for possessing crack cocaine and OxyContin pills, Dkt. 07CR0693. Id. ¶¶ 42, 47, 48. His offense level was reduced by three levels under Guideline § 3E1.1 for acceptance of responsibility. Id. ¶¶ 28, 29. These adjustments resulted in a total offense level of 29. Id. ¶ 30. Mardis' total criminal history score was 16, which established a criminal history category of VI. Id. ¶ 49. However, because he was a career offender, his criminal history category was automatically VI. Id. ¶ 50. An offense level 29 combined with a criminal history category VI, resulted in a Guidelines range of 151-188 months' imprisonment.

         A change of plea and sentencing hearing was held on January 28, 2016, at which Mardis' plea of guilty was accepted. Crim. Dkt. 272. The Court sentenced Mardis to a below Guidelines sentence of 137 months' imprisonment. Crim. Dkt. 277. Judgment was entered on February 2, 2016. Id. Mardis did not appeal his conviction or sentence.

         On May 2, 2016, Mardis filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. 1; Dkt. 2. He supplemented his motion on October 17, 2016, April 17, 2017, September 8, 2017, and March 12, 2018. Dkt. 9; Dkt. 18; Dkt. 19; Dkt. 22; Dkt. 31. The United States has responded in opposition on three occasions. Dkt. 20; Dkt. 29; Dkt. 45. Mardis filed several replies. Dkt. 21; Dkt. 30; Dkt. 50.


         A. Section 2255 Briefing

         The parties have filed numerous briefs in this action. In his initial § 2255 motion, Mardis alleged that his trial counsel was ineffective for: (1) failing to object to alleged inaccuracies in his PSR; and (2) failing to argue that the trial judge abused her discretion by relying on documents that did not conclusively prove the status of his prior state convictions. Dkt. 1 at 4, 7; see also Dkt. 2 at 1-9. He also asserted that his prior convictions were not “crimes of violence” under Johnson. Dkt. 1 at 5; see also Dkt. 2 at 9-33. On October 17, 2016, Mardis supplemented his § 2255 motion to assert a claim that he was incorrectly sentenced as a career offender because his prior 2001 drug conviction did not qualify as a prior predicate controlled substance in view of Mathis. Dkt. 9.

         On April 17, 2017, Mardis conceded that the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017) foreclosed his Johnson claims. Dkt. 18 at 2. However, Mardis continued to argue that his counsel was ineffective for failing to object to the prior convictions used to establish him as a career offender and increased his criminal history score because he did not actually serve any time for his prior 2002, 2003 and 2005 convictions, as his sentences for those convictions were ordered to run concurrently with his prior 2001 Ohio conviction. See Dkt. 18 at 1; Dkt. 19 at 8, 23-38. Under a caption that the district court abused its discretion and committed plain error when it incorrectly sentenced him as a career offender, he also continues to argue that his prior drug convictions do not qualify as predicate controlled substance offenses in view of Mathis, Descamps v. United States, 570 U.S. 254 (2013), and Shepard v. United States, 544 U.S. 13 (2005). Dkt. 19 at 9-23. In response, the United States argues that Mardis stipulated that he was a career offender, his prior convictions remain predicate offenses post-Mathis, criminal history points were correctly assigned, and therefore, his counsel did not provide ineffective assistance. Dkt. 20. In reply, Mardis repeats his prior arguments. Dkt. 21. Mardis concedes that his 2006 Ohio conviction for aggravated assault remains a predicate offense. Dkt. 21 at 20.

         On September 8, 2017, Mardis supplemented his prior § 2255 motion to raise a claim that his Ohio conviction for aggravated assault did not qualify as a crime of violence in view of Mathis. Dkt. 22. In response, the United States argues that Mardis should be bound to his plea agreement and that Ohio aggravated assault remained a crime of violence post-Mathis. Dkt. 29. In reply, Mathis emphasized that his claim of ineffective assistance was premised on his trial counsel's failure to apply Descamps and that under Descamps, his trial counsel should have known his prior convictions were not predicate offenses. Dkt. 30.

         On March 12, 2018, Mardis once again supplemented his § 2255 motion to reiterate that his prior drug convictions did not qualify as predicate offenses, that Descamps and Mathis are retroactive, and that his Fifth Amendment due process right was violated when the district court sentenced him using information that did not bear sufficient indicia of reliability. Dkt. 31. In response, the United States repeats its prior arguments that Mardis is bound to his plea agreement and in any event, remains a career offender. ...

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