United States District Court, M.D. Pennsylvania
John E. Jones III Judge
Omar Sierre Folk (“Folk”) has filed the following
motions: a motion (Doc. 179) for an evidentiary hearing; a
motion (Doc. 180) to amend judgment pursuant to Federal Rule
of Civil Procedure 59(e) and for reconsideration pursuant to
Federal Rule of Civil Procedure 60(b)(1); a motion (Doc. 183)
to amend and supplement Folk's previously filed motion
for relief under 28 U.S.C. § 2255 (“2255
motion”); another motion (Doc. 184) to amend and
supplement his 2255 motion; a motion (Doc. 186) “under
status quo in light of motion's after Doc. 181 clerical
error”; a motion (Doc. 189) for an order to show cause;
and a motion (Doc. 190) for judgment on the pleadings. For
the following reasons, these motions will be denied.
previously explained the complicated procedural history of
this matter in our February 16, 2018 memorandum, but to
understand the instant motions the background bears
On August 14, 2012, a jury convicted Folk of various drug and
firearms offenses. (Docs. 82, 84). Shortly thereafter, he
moved for a new trial or alternatively to vacate judgment.
(Doc. 87). The court denied that post-trial motion. (Doc.
Folk was found to be a career offender under the United
States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), and his resultant sentencing
Guideline range was 420 months to life. (Presentence
Investigation Report (“PSR”) ¶¶ 29-31,
79). On September 26, 2013, the court granted a significant
downward variance and sentenced Folk to 264 months'
imprisonment. (Doc. 134 at 28-29; Doc. 126).
Folk appealed the denial of a motion for a mistrial made
during trial, as well as the denial of his post-trial motion
for a new trial. (Doc. 127); United States v. Folk,
577 Fed.Appx. 106, 106 (3d Cir. 2014) (nonprecedential). On
September 17, 2014, the Third Circuit affirmed the judgment.
Folk, 577 Fed.Appx. at 107. The Supreme Court of the
United States denied Folk's petition for a writ of
certiorari on October 5, 2015. Folk v. United
States, 136 S.Ct. 161 (2015) (mem).
On June 5, 2016, Folk-through counsel from the Federal Public
Defender's Office-filed his first motion under 28 U.S.C.
§ 2255 based on the recent Supreme Court case of
Johnson v. United States, 135 S.Ct. 2551 (2015)
(holding the residual clause of the Armed Career Criminal Act
(“ACCA”) unconstitutionally void for vagueness).
(Doc. 139). It appears as though the Federal Public Defender,
appointed under a Middle District standing order
(see Doc. 141 (M.D. Pa. Standing Order 15-06)),
identified Folk as a potential candidate for relief under
Johnson and filed the 2255 motion on his behalf
pursuant to the standing order. Evidently, due to the looming
deadline established by the gatekeeping requirements of 28
U.S.C. § 2255(f) and Johnson's date of
decision of June 26, 2015,  the Federal Public Defender's
policy was to file the 2255 motion on the defendant's
behalf and subsequently communicate with the defendant,
withdrawing the motion if the defendant did not want it
filed. (Doc. 143 at 2). This practice appears to have been
followed in the instant case. (Id. at 2-3).
On June 8, 2016, the Federal Public Defender moved to appoint
counsel from the Criminal Justice Act (“CJA”)
panel to represent Folk in his Johnson-based 2255
motion. (Doc. 143). The request for appointment of CJA
counsel was the result of a conflict of interest with Folk
stemming from a civil case he filed against the Federal
Public Defender's Office. (Id. at 3). The court
granted this motion the following day, and CJA counsel was
appointed. (Doc. 144; Doc. 149 at 1).
On August 30, 2016, the court issued an order for the
Government to show cause why relief should not be granted on
Folk's 2255 motion. (Doc. 145). Because his
Johnson claim implicated the residual clause of the
career offender portion of the Guidelines, see
U.S.S.G. § 4B1.2(a)(2) (2013), rather than the residual
clause of the ACCA, the Government moved to stay the case in
light of relevant cases pending in the Third Circuit as well
as the Supreme Court's grant of certiorari in Beckles
v. United States, 616 Fed.Appx. 415 (11th Cir. 2015)
(per curiam), cert. granted, 136 S.Ct. 2510 (2016)
(mem.) (granting certiorari to determine, inter
alia, whether advisory Guideline[s'] residual clause
found in U.S.S.G. § 4B1.2(a)(2) was void for vagueness
after Johnson). (Doc. 147 at 2). Folk's counsel
concurred in the stay. (Id. at 3). On September 19,
2016, the court granted the unopposed motion to stay the case
in light of the grant of certiorari in Beckles.
After the September 19, 2016 imposition of a stay, no entries
appear on the docket until February 27, 2017, when Folk's
CJA counsel filed an unopposed motion to withdraw as counsel,
(Doc. 149). In her motion to withdraw, which contained little
detail, CJA counsel cited an inability to communicate
effectively with Folk and his explicit request that she
withdraw from his case. (Id. at 2). The court
granted the motion to withdraw on April 7, 2017, noting that
Folk would proceed pro se in the post-conviction
matters. (Doc. 153).
On April 3, 2017, four days prior to the court granting CJA
counsel's motion to withdraw, Folk filed a pro
se “motion to amend under
15(c)(2)(B) in regards to original 2255.” (Doc.
151). Within this motion to amend his initial 2255 motion,
Folk referenced a “motion [for] leave [to] amend under
[Rule] 15(a)” that he purportedly filed in October of
2016. (Id. at 1). As explained above, however, no
motion to amend-or any other motion or document-appears on
this case's docket in October of 2016. Folk also
mentioned this October 2016 motion to “amend under
15(a)” in his reply brief (Doc. 158), averring that the
motion was deposited in the prison mail system on October 5,
2016.(Doc. 158 at 1, 2).
Importantly, Folk attached, as “Exhibit (A)” to
his reply brief, the cover page of this October 5, 2016
pro se motion to “amend under 15(a), ”
which contains a “FILED” time-stamp of October 7,
2016, and initials of a staff member from the clerk's
office. (See Doc. 158-1 at 1). Upon investigation,
it appears that-without this court's knowledge-the
clerk's office had initially stamped the motion to
“amend under 15(a)” as filed, but instead of
filing it on the docket, mailed the pro se motion
back to Folk after discovering that he was represented by CJA
In his reply brief, Folk further averred that he explicitly
asked his CJA counsel to raise other issues for relief,
beyond the Johnson claim, within the one-year
statute of limitations set forth in Section 2255(f)(1).
(See Doc. 158 at 1). CJA counsel corroborated this
averment in her telephonic communications with this court
prior to her withdrawal from the case, stating that Folk had
wanted to raise additional claims but that she was having
significant difficulty deciphering what those claims
On August 2, 2017, the court permitted Folk to file the
entire October 5, 2016 motion to “amend under
15(a)” so that it could be properly considered.
(See Doc. 162). . . . One week later, Folk filed the
full October 5, 2016 motion as requested. (See Doc.
On August 23, 2017, the Government filed its brief in
opposition to Folk's motion to “amend under
15(a).” (Doc. 166). The Government appear[ed] to
concede that leave to amend should be granted, but
challenge[d] the merits of the additional claims raised in
the motion. (Id. at 2-19).
(Doc. 177 at 1-7).
Folk's initial motion to “amend under 15(a)”
was under consideration, he filed two additional motions to
amend his 2255 motion. The first additional motion to amend
was filed on August 17, 2017, and the second was filed on
November 3, 2017. (Docs. 165, 169). Then, on November 30,
2017, Folk filed a motion (Doc. 170) to appoint counsel, as
well as a motion (Doc. 171) for an evidentiary hearing.
February 16, 2018, we issued a memorandum and order
addressing Folk's outstanding motions. (Docs. 177, 178).
We noted that because Folk's initial motion to
“amend under 15(a)” was filed on October 5, 2016,
exactly one year from the date his judgment of conviction
became final, it was filed within the one-year statute of
limitations provided by 28 U.S.C. § 2255(f)(1). (Doc.
177 at 8-9). We also found that amendment of his 2255 motion
would cause little, if any, prejudice to the government.
(Id.) Thus, we granted his initial motion to amend
and treated the seven claims raised therein as part of his
original 2255 motion. However, we ultimately denied the 2255
motion in its entirety, rejecting the Johnson-based
claim asserted in the original motion, as well as the seven
additional claims raised by amendment. (See Id. at
9-21). Additionally, we denied Folk's August 17, 2017 and
November 3, 2017 motions to amend, his November 30, 2017
motion to appoint counsel, and his November 30, 2017 motion
for an evidentiary hearing. (See Id. at 21-24).
the issuance of our February 16, 2018 decision, Folk has
filed eight additional motions. We have reviewed the first
seven of these motions, and for the reasons set forth below,
find that none has merit. We will also request clarification
from Folk regarding his eighth motion, “Movant's
File a Motion Upon FRP Fine Inregards [sic] to Doc. 172 Still
Not Answer Under U.S.S.G. 5E1.2(a) and 5E1.2(d)” (Doc.
191), as it is completely incomprehensible.
Folk's previous pro se filings, all of the
instant motions are extremely difficult to decipher. Because
the first three motions appear to raise similar arguments, we
will address them together.
February 26, 2018 Motion for an Evidentiary Hearing; March 1,
2018 Motion to Alter Judgment and for Reconsideration; and
March 13, 2018 Motion to Amend and Supplement 2255 Motion
these three motions, it appears that the crux of Folk's
argument is that he was inappropriately designated a career
offender under the United States Sentencing Guidelines Manual
(“U.S.S.G.” or “Guidelines”) and that
his CJA counsel, Attorney Jennifer Wilson (“Attorney
Wilson”), was ineffective for failing to raise this
argument in post-conviction proceedings. Also, in his March
1, 2018 Motion to Alter Judgment and for Reconsideration,
Folk contends that Attorney Wilson was ineffective for
failing to oppose the government's motion to stay his
we note that both Federal Rule of Civil Procedure 59(e) and
Rule 60(b) impose extremely high bars for obtaining relief.
Moreover, in order to assert a new claim for relief in an
out-of-time motion to amend a Section 2255 filing, the movant
must be able to show that the claim relates back to the
original 2255 motion. See Mayle v. Felix, 545 U.S.
644, 662-64 (2005). Nonetheless, because Folk has been
attempting to assert these career offender challenges in one
form or another since the initial 2255 motion was filed
without his consultation, we will address the merits of
Folk's arguments to finally put to rest his claim that he
was wrongfully sentenced as a career offender.
Career Offender Designation Under the Guidelines
defendant is considered a career offender if (1) he was at
least eighteen years old at the time he committed the instant
offense of conviction; (2) the instant offense is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1(a). At the time of
Folk's sentencing, the Guidelines defined “crime of
violence” as any offense under state or federal law
that is punishable by a term of imprisonment exceeding one
year, and which either:
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that
presents a serious risk of physical injury to another.
U.S.S.G. § 4B1.2(a).
undisputed that Folk was at least eighteen years old when he
committed the instant offense of conviction and that the
offense qualified as a “controlled substance
offense.” The only career offender element in question
is whether Folk had two qualifying predicate convictions.
sentencing, the parties identified four prior Pennsylvania
state-court convictions that could potentially qualify as
career offender crimes of violence. They included two robbery
convictions from 2001, a 2003 simple assault conviction, and
a 2003 terroristic threats conviction. (See Doc. 134
at 3-9; PSR ¶¶ 42-44).
the 2001 robbery convictions involved two robberies that
purportedly occurred within five minutes and 150 feet of each
other, Folk's counsel argued at sentencing that the
robberies could not be treated as two separate episodes for
purposes of counting predicate offenses. (Doc. 134 at 3-4).
Folk's counsel, however, appeared to concede that the
simple assault and terroristic threats convictions, in light
of then-current Third Circuit law, qualified as crimes of
violence. (Id. at 7-9). Thus, Folk's counsel
conceded, and Judge Caldwell agreed, that Folk qualified as a
career offender under the Guidelines regardless of whether
the two robberies could be treated as separate episodes.
contends that he was wrongfully designated a career offender.
He argues that crimes under Pennsylvania's robbery,
simple assault, and terroristic threats statutes do not
qualify as federally defined “crimes of violence,
” and, ...