United States District Court, S.D. Indiana, Indianapolis Division
MARDIS 72542-061 MANCHESTER - FCI MANCHESTER FEDERAL
CORRECTIONAL INSTITUTION, Brian L. Reitz UNITED STATES
ATTORNEY'S OFFICE (Indianapolis) James Robert Wood UNITED
STATES ATTORNEY'S OFFICE
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE.
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.
SECTION 2255 MOTION STANDARDS
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
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),
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.
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.
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.
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.
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.
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.
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.
Section 2255 Briefing
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.
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.
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.
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