United States District Court, D. New Jersey
August 4, 2005.
NAKIA FENNER, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JOSEPH GREENAWAY, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Petitioner Nakia Fenner ("Petitioner") filed this pro se
petition seeking a writ of habeas corpus, pursuant to
28 U.S.C. § 2255 ("§ 2255").*fn1 Petitioner contends that his sentence
should be vacated or amended for three reasons. First, Petitioner
claims that his sentence should be vacated because the sentencing
court erred when it increased Petitioner's base offense level by
two points for possession of a firearm. Second, Petitioner
alleges that the United States Sentencing Guidelines were applied
in an unconstitutional manner to his case. Third, Petitioner
claims that his sentence should be amended, because the Bureau of
Prisons was negligent, causing him to suffer severe physical
injuries, and failed to award his good time credits properly, thereby depriving him of a reduction of his sentence. For the
reasons set forth below, this petition is denied.
Between August 1998 to August 2000, Petitioner and seven other
individuals, members of the "Crips" organization, conspired to
distribute heroin, cocaine and cocaine base ("crack"). (Answer
dated July 14, 2005, at 1.) On August 22, 2001, a federal grand
jury in the District of New Jersey issued a multi-count
indictment, charging Petitioner and others with conspiracy to
distribute, and possession with intent to distribute, heroin,
cocaine, and cocaine base, in violation of
21 U.S.C. § 846.*fn2 (Petitioner's Brief filed March 6, 2005 ("Pet.
Br."), at 2.) On April 30, 2002, Petitioner pled guilty to
conspiracy to distribute heroin. In his plea agreement with
Respondent, Petitioner waived his right to challenge his
sentence, pursuant to 28 U.S.C. § 2255. (Answer at 2.)
On November 4, 2002, the District Court sentenced Petitioner to
a term of imprisonment of 87 months and four years of supervised
release. (Answer at 2.) Petitioner did not file an appeal seeking
direct review of his conviction or sentence. On March 6, 2005,
Petitioner filed the instant motion to vacate his sentence under
28 U.S.C. § 2255. On July 14, 2005, the United States Government
filed an answer.
Federal prisoners may seek relief under § 2255 for any of the
following reasons: (1) the sentence violated the United States Constitution; (2) the Court
did not have proper jurisdiction; (3) the sentence exceeded the
maximum allowed by law; or (4) the sentence is subject to
collateral attack on other grounds. See 28 U.S.C. § 2255.
Errors that may justify reversal on direct appeal are not
necessarily sufficient to support relief on collateral review, as
§ 2255 is not a substitute for direct appeal. See United
States v. Addonizio, 442 U.S. 178, 184 (1979). Section 2255 is
intended to address "fundamental defects," such as jurisdictional
or constitutional errors, that may have resulted in a "complete
miscarriage of justice," or an outcome that is "inconsistent with
the rudimentary demands of fair procedure." United States v.
Timmreck, 441 U.S. 780, 784 (1979) (internal citations omitted).
The ability to obtain relief under § 2255 is not unlimited.
See Solis v. United States, 252 F.3d 289, 295 (3d Cir. 1989).
For example, a petitioner "would not be entitled to a hearing if
his allegations were contradicted conclusively by the record, or
if the allegations were patently frivolous." Id. Courts have
the discretion to dismiss a § 2255 motion summarily "where the
motion, files, and records show conclusively that the movant is
not entitled to relief." United States v. Nahodil, 36 F.3d 323,
326 (3d Cir. 1994). In addition, prisoners must seek relief
within the one year statute of limitation set forth in § 2255.
The time limitation for filing motions under § 2255 is addressed
at greater length below.
Petitioner raises three claims in support of the instant motion
to vacate his sentence. First, Petitioner claims that the Court
erred when it increased Petitioner's base offense level by two
points for possession of a firearm, in violation of his rights
under the sixth amendment. (Pet. Br. at 3.) Second, Petitioner
argues his sentence is inconsistent with Blakely v. Washington,
542 U.S. 296 (2004), and United States v. Booker, 125 S. Ct. 738
(2005). (Pet. Br. at 5.) Third, Petitioner claims that his
sentence should be amended, because the Bureau of Prisons was
negligent, causing him to suffer severe injuries, and failed to
award his good time credits properly.
Respondent contends Petitioner's request should be dismissed
because, in his plea agreement with Respondent, Petitioner
knowingly and voluntarily waived his right to challenge his
sentence under § 2255. (Answer at 2.) Furthermore, Respondent
contends that Petitioner's motion was filed after the one year
statute of limitations expired, and therefore, is time-barred.
(Answer at 3.) Finally, Respondent asserts that, even if the
motion were not barred by waiver, and deemed timely by this
Court, Petitioner's claims seeking retroactive application of
United States v. Booker, 125 S. Ct. 738 (2005), and for the
consideration of post-sentencing events lack merit and must be
denied. This Court agrees, and accordingly, Petitioner's motion
I. Waiver of Right to File § 2255 Motion
Waivers of appeals are valid and enforceable as long as they
are entered into knowingly and voluntarily, and they do not work
a miscarriage of justice. United States v. Khattak,
273 F.3d 557, 563 (3d Cir. 2001). The same principle applies in the
context of a defendant waiving his right to seek collateral
relief under 28 U.S.C. § 2255. See United States v. Garrett,
No. 03-6176, 2005 WL 768761 (10th Cir. 2005); United States v.
Jeronimo, 398 F.3d 1149 (9th Cir. 2005); United States v.
White, 307 F.3d 336 (5th Cir. 2002).
As a preliminary matter, this Court must consider whether, by
stipulating to the plea agreement, Petitioner waived his right to
file this petition. That stipulation provides in part:
Defendant knows that he has, and voluntarily waives,
the right to file any appeal, any collateral attack,
or any other writ or motion after sentencing
including, but not limited to, an appeal under 18 U.S.C. § 3742 or a
motion under 28 U.S.C. § 2255, which challenges the
sentencing court's determination or imposition of the
offense level, if the total offense level determined
by the court is equal to or less than 25.
(Answer at 2) (quoting Plea Agreement dated January 16, 2002,
Schedule A at ¶ 7).
On April 30, 2002, Petitioner entered into a guilty plea before
the sentencing court. At the plea hearing, the sentencing court
ensured that Petitioner knowingly and voluntarily waived his
right to appeal. The Court addressed the petitioner personally in
Q:*fn3 Now, going back to questions that I asked you
before, can I infer that when you signed this agreement, you did
so voluntarily, meaning of your own free will, and you did so
knowingly, meaning you understood that which you were doing?
Q: Okay. I now want to go over your plea agreement with you,
and your plea agreement is on the stationary of the United States
Attorney, and on the next-to-the-last page there are two
signatures, today's date, yours, Nakia Fenner/Rajore Derricotte.
Q: And that of Mr. Fusella, who witnessed your signature. True?
Q: Okay. Did you read this document before you signed it?
Q: Did you understand it?
Q: If you have any questions, did you pose those questions to
Mr. Fusella and did he answer your questions to your satisfaction?
(Plea Transcript at 9-10.) The dialogue between the Court and
Petitioner clearly prove that Petitioner knowingly and
voluntarily waived his right to appeal.
At sentencing, on November 4, 2002, the sentencing court
determined that Petitioner should be sentenced at a base offense
level of 25, and a criminal history category of 3, which resulted
in a sentencing range from 70 to 87 months. The sentencing court
imposed a sentence, in accordance with the plea agreement's
requirement of an offense level of 25, that satisfies the waiver
provision of paragraph 8. The waiver applies and no appellate
rights of petitioner are preserved.
Petitioner has provided no reason why this Court should void
the waiver of his right to file a § 2255 petition. He has not
presented a basis for concluding that he did not waive his right
to file a § 2255 motion knowingly and voluntarily.
In addition, enforcing the waiver will not amount to a
miscarriage of justice in this case. To determine whether a
waiver of the right to appeal amounts to a miscarriage of
justice, courts should consider, among other things, "[t]he
clarity of the error, its gravity, its character . . . the impact
of correcting the error on the government, and the extent to
which the defendant acquiesced in the result." Khattak,
273 F.3d at 563 (citation omitted). These factors are concerned with
the circumstances where there has been an error, such as issues
related to the facts or sentencing guidelines. Id. at 562-63
(citation omitted). In the instant case, the Petitioner does not
contend that any error exists. Based on these facts, enforcing
the waiver in the plea agreement will not amount to a miscarriage
of justice. Accordingly, the waiver is valid and enforceable, and precludes
Petitioner from filing the instant motion. Thus, the petition
should be denied.*fn4
II. Statute Of Limitations
Under 28 U.S.C. § 2255, petitioners are limited to a one-year
period in which to move to vacate or set aside their sentence.
Specifically, § 2255 provides, in pertinent part, that:
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of
1) the date on which the judgment of conviction
2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255.
In the instant case, the statute of limitations began to run
when the judgment became final.*fn5 In cases where a
defendant does not seek direct review by the court of appeals, a
conviction becomes "final" on the date on which the time for
filing a direct appeal expires. See Kapral v. United States,
166 F.3d 565, 577 (3d Cir. 1999). Under the Federal Rules of
Appellate Procedure, a defendant must file a notice of appeal in
the district court within ten days of the entry of judgment.
See FED. R. APP. P. 4(b). Therefore, if a defendant does not
file a notice of appeal within ten days of the entry of his conviction,
that conviction becomes "final" for purposes of triggering the
statute of limitations under § 2255, and the one-year clock
begins to run.*fn6
This Court measures the timeliness of Petitioner's motion from
the date on which the judgment of conviction became final. See
supra note 3. Petitioner was sentenced on November 4, 2002, and
he did not file a direct appeal. Therefore, his conviction became
final ten days after such judgment was entered, when, pursuant to
the Federal Rules of Appellate Procedure, the right to file for
direct review expired. (Answer at 4.) The one year period started
on or about November 18, 2002, and concluded one year later on or
about November 18, 2003. Petitioner, did not file his petition
until March 6, 2005, long after the statute of limitations had
Further, Petitioner provides no legal argument to demonstrate
that his situation is a "rare and exceptional case" that demands
equitable tolling. See Davis v. Johnson, 158 F.3d 806, 811
(5th Cir. 1998). In this Circuit, the statute of limitations may
be subject to equitable tolling for a habeas petitioner in only
four circumstances, none of which apply to Petitioner's case.
These circumstances include:
1) where the defendant actively misled the plaintiff;
2) where the plaintiff was in some extraordinary way
prevented from asserting his rights;
3) where the plaintiff timely asserted his rights
mistakenly in the wrong forum; or
4) where [in a Title VII action] the claimant
received inadequate notice of his right to file suit,
a motion for appointment of counsel is pending, or
the court misled the plaintiff into believing that he
had done everything required of him. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999).
Finally, were this Court to determine the actual merit of
Petitioner's claims, it only would serve to "frustrate? the
intent of Congress that claims under 28 U.S.C. § 2255 be advanced
within one year after judgment of conviction becomes final unless
any of the other circumstances in 28 U.S.C. § 2255 are
applicable." United States v. Duffus, 174 F.3d 333
, 337 (3d
Cir. 1999). Therefore, this Court finds that Petitioner's motion
is untimely, and that relief may not be properly granted under §
For the reasons set forth in this opinion, this Petition is
denied. Further, pursuant to 28 U.S.C. § 2253(c)(2), because
Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability shall not be