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United States v. Folk

United States District Court, M.D. Pennsylvania

June 22, 2018



          Hon. John E. Jones III Judge

         Defendant 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.

         I. BACKGROUND[1]

         We previously explained the complicated procedural history of this matter in our February 16, 2018 memorandum, but to understand the instant motions the background bears repeating:

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. 90).
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 (Doc. 127); United States v. Folk, 577 Fed.Appx. 106, 106 (3d Cir. 2014) (nonprecedential).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, [2] 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. (Doc. 148).
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)[3] 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.[4](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 counsel.
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 entailed.
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. 163).
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).

         While 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.

         On 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).

         Since 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.


         As with 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.

         A. 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

         In 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 2255 proceedings.

         Initially, 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.

         1. Career Offender Designation Under the Guidelines

         A 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).[5] 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).[6]

         It is 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.

         At 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).

         Because 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. (Id.)

         Folk 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, ...

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