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WILLIAMS v. STURM

August 17, 2000

DENNIS WILLIAMS, PLAINTIFF,
V.
CHERYL STURM, DEFENDANT.



The opinion of the court was delivered by: DuBOIS, District Judge.

  ORDER

AND NOW, to wit, this 17th day of August, 2000, upon consideration of Defendant Cheryl J. Sturm's Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 5, filed May 30, 2000), Plaintiff's Opposition to Defendant's Motion to Dismiss (Document No. 7, filed June 28, 2000), Defendant Cheryl Sturm's Reply Brief in Support of her Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) (Document No. 8, filed July 19, 2000) and Plaintiff's Response to Defendant's Reply Brief (Document No. 9, filed August 11, 2000), for the reasons stated in the attached Memorandum, it is ORDERED that Defendant Cheryl J. Sturm's Motion to Dismiss Plaintiff's Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED and Plaintiff Dennis Williams' Complaint is DISMISSED.

It is FURTHER ORDERED that, in the event plaintiff Dennis Williams reasonably concludes that he has a claim based on what is set forth in the attached Memorandum, he is GRANTED leave to file an amended complaint in accordance with this Order and Memorandum within 45 days.

MEMORANDUM

In this legal malpractice action, plaintiff Dennis Williams ("plaintiff") asserts a claim against his former attorney, defendant Cheryl Sturm ("defendant"), arising out of the preparation and filing of a motion to vacate sentence pursuant to 28 U.S.C. § 2255 ("§ 2255"). Presently before the Court is defendant's motion to dismiss plaintiff's complaint.

I. BACKGROUND

On May 4, 1989, plaintiff was convicted in the United States District Court for the District of Maryland of conspiracy to distribute 500 grams or more of cocaine base in violation of 21 U.S.C. § 841. Plaintiff's defense attorney filed an appeal and an Anders brief*fn1 asserting there existed no grounds for appeal. Plaintiff then filed a pro se brief arguing there was no evidence that his crime involved more than 500 grams of cocaine. The United States Court of Appeals for the Fourth Circuit affirmed the judgment of the District Court on November 15, 1990, and, on February 19, 1991, the Supreme Court denied certiorari.

On October 15, 1992, plaintiff filed a pro se § 2255 Motion to Vacate Sentence in the District Court for the District of Maryland. That court denied plaintiff's motion on September 16, 1993 and the Fourth Circuit affirmed that decision on February 17, 1994.

Plaintiff subsequently retained defendant to prepare an opinion letter explaining what issues he could raise in a motion to vacate sentence pursuant to § 2255. On April 21, 1994, defendant sent plaintiff an opinion letter informing him that his recourse was to attack his conviction and/or sentence by filing a Motion to Vacate, Set Aside or Correct Sentence pursuant to § 2255.

Plaintiff asked defendant to prepare his § 2255 motion. In response, on November 11, 1994, defendant wrote plaintiff a letter in which she informed him that the United States Sentencing Commission was conducting a study as to whether the United States Sentencing Guidelines for offenses involving crack cocaine should be changed and the Commission was due to report to Congress by December 31, 1994. Defendant advised plaintiff not to file anything with the court until the Sentencing Commission presented its report to Congress.

On January 12, 1995, defendant sent plaintiff a draft of the § 2255 motion she intended to file on his behalf. In a letter accompanying the draft, defendant asked plaintiff to review the motion and respond with any comments. She also told plaintiff that the Sentencing Commission report on the Sentencing Guidelines for crack was delayed and was scheduled to be released to Congress on March 1, 1995. Defendant again recommended that plaintiff wait for this report before filing his § 2255 motion with the court.

On November 20, 1995, plaintiff sent defendant a letter asking her file his § 2255 motion. On November 25, 1995, plaintiff sent defendant a letter asking her to include a request for an evidentiary hearing in the motion. On March 11, 1996, defendant sent plaintiff a revised copy of the motion she intended to file on his behalf. In a letter accompanying the copy, defendant instructed plaintiff to date the signature pages and return them to her.

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217 (1996), took effect, requiring certification by an appropriate appellate court that a second or successive motion filed under § 2255 contains (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense or (2) a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable. See 28 U.S.C. § 2244, 2255.

On June 28, 1996, defendant filed plaintiff's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of Maryland (the "§ 2255 motion"). On October 3, 1996, that court denied plaintiff's motion on the grounds that plaintiff failed to present the motion to the Fourth Circuit for certification, plaintiff's motion did not contain either newly discovered evidence or a new rule of constitutional law as required under the AEDPA, and one of ...


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