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Mubang v. Coakley

United States District Court, N.D. West Virginia

March 5, 2018

THERESA S. MUBANG, Petitioner,
v.
JOE COAKLEY, Complex; U.S. DISTRICT COURT, Maryland,, Respondent.

          Bailey, Judge

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         On February 21, 2018, the pro se petitioner filed an Application for Habeas Corpus pursuant to 28 U.S.C. §2241. The petitioner paid the $5.00 filing fee on March 1, 2018. This matter is before the undersigned for an initial review and Report and Recommendation pursuant to LR PL P 2.

         II. FACTS[1]

         In a superseding indictment dated September 27, 2004, a grand jury in the District of Maryland charged the petitioner with one count of holding a juvenile to a term of involuntary servitude and one count of harboring a juvenile alien for financial gain. On November 7, 2004, a jury convicted the petitioner on both counts of the indictment. Sometime between the verdict and sentencing, the petitioner fled the country and returned to her native Cameroon. The trial Court issued a bench warrant for her arrest. On February 28, 2005, the petitioner was sentenced in absentia to concurrent terms of 210 months of imprisonment on Count One and 120 months of imprisonment on Count Two, along with three years of supervised release. Judgment was entered on March 1, 2005, and her counsel noted an appeal to the United States Court of Appeals for the Fourth Circuit two days later.

         On April 6, 2005, the petitioner's counsel moved to stay the appeal because the petitioner was a fugitive. The Government responded in opposition and moved to dismiss the appeal on April 15, 2005. On April 20, 2005, the Fourth Circuit denied the motion to stay and dismissed the appeal, but granted the petitioner leave to move to file an appeal, with good cause shown, if the petitioner surrendered herself to federal custody within 30 days. The petitioner did not do so. Instead, she was apprehended in Cameroon on May 26, 2005, and returned to the United States two days later. Although counsel moved to reinstate the appeal on October 7, 2005, the court denied that motion on November 21, 2005.

         Counsel for the petitioner filed a Section 2255 petition on her behalf on July 19, 2006. That motion asserted five grounds for relief: (1) her conviction on count one was barred by the statute of limitations; (2) the Government did not timely disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (3) she was deprived of her jury trial right because the jury delivered a verdict in “less than two hours”; (4) certain testimony from three other women who lived with the petitioner was improperly admitted; and (5) the evidence was insufficient to establish coercion, a required element under count one. On August 9, 2011, the District Court entered a Memorandum Opinion denying the petitioner's motion to vacate.

         On August 12, 2013, the petitioner filed a “Motion to Vacate Sentence and Order Immediate Release from Custody as Authorized, Pursuant to 18 U.S.C. § 3742(a) Sentence was Imposed in Violation of Law”, seeking to vacate her sentence. See 8:03-cr-539-DKC ECF No.133. The District of Maryland construed the motion as being filed pursuant to 28 U.S.C. § 2255. In the motion, the petitioner claimed that her final sentence was imposed in violation of the Ex Post Clause, because she was sentenced under the 2000 version of the U.S. Sentencing Guidelines (“USSG”). She asserted that because the 2000 guidelines provided for more severe punishment, she should have been sentenced under the 1998 USSG which was in effect at the time of her offenses. She further alleged that her sentence violated the dictates of Apprendi v. New Jersey and Alleyne v. United States. Finally she claimed that the court abused its discretion in sentencing her beyond the statutory minimum term and, in effect, engaged in an “unwarranted sentencing disparity.”On August 16, 2013, the District of Maryland entered a Memorandum Opinion dismissing the Motion without prejudice. In so doing, the Court found it lacked jurisdiction because it was a second or successive motion filed under 28 U.S.C. § 2255 which has not been certified in advance by a panel of the appropriate circuit court of appeals. Id. E CF No . 135. On October 9, 2013, the Fourth Circuit Court of Appeal denied the petitioner's motion under 28 U.S.C. § 2244 to filed a second o successive application for relief under 28 U.S.C. § 2255.

         On June 20, 2016, the Petitioner filed a Motion for Sentence Reduction pursuant to 28 U.S.C. § 924, citing Johnson v. United States, 135 S.Ct. 2551 (2015) as support. Id. ECF No. 141. The District of Maryland construed the same as a Motion to Vacate pursuant to 28 U.S.C. § 2255. On August 1, 2016, the motion was dismissed without prejudice as a second or successive application for relief. ECF No. 144. On September 12, 2016, the Fourth Circuit Court of Appeals denied the petitioner's notion for authorization to file a second or successive § 2255. Id. ECF No. 146.[2]

         I. ISSUE PRESENTED

         In her pending §2241 motion, the petitioner indicates that she is challenging the validity of her sentence, but is clear that she is attacking her conviction. Specifically, the petitioner alleges:

(1) the introduction of evidence under Rule 404(b) about other young women was prejudicial and improperly ...

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