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Ali Riley v. United States of America

July 28, 2011

ALI RILEY, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



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

NOT FOR PUBLICATION

OPINION

Before the Court is Petitioner, Ali Riley‟s ("Riley" or "Petitioner") pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Respondent, United States of America ("Government"), has filed an answer in response to Riley‟s motion. As permitted by Federal Rule of Civil Procedure 78, the Court resolves this motion without oral argument. For the reasons set forth below, the Court denies Petitioner‟s motion.

I. Background and Procedural History

On March 6, 2006, at approximately 2:00 a.m., two Newark, New Jersey police officers assigned to the auto-theft task force activated their lights and sirens, after radioing other task force members of their intention to effectuate a traffic stop, when they observed a burgundy Mercury with tinted windows and no license plates, both state motor vehicle violations. Rather than pulling over, the Mercury accelerated into a Cadillac parked under a street light on the right side of the road. The officers stopped behind the Mercury to prevent the driver from backing up. As one officer exited the passenger side of the patrol car, he observed Riley get out of the crashed vehicle and nearly fall to the ground. When Riley stumbled, the officer saw a gun fall from Riley‟s waistband. As this officer recovered the gun, the officer who had been driving the patrol car pursued Riley on foot. While he chased Riley down an alley on the right side of a house, an officer who had arrived subsequently ran down an alley on the left side. A group of officers from the task force restrained Riley behind the building. Riley was then brought back to the original patrol car and placed under arrest. This sequence of events, from the time the officers saw Riley exit the Mercury until he was apprehended, took less than thirty seconds.

On June 5, 2006, Petitioner Riley was charged in a one-count indictment with unlawful possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1).*fn1 On September 12, 2007, after a two day trial, the jury returned a guilty verdict. This Court sentenced Riley to 92 months imprisonment on June 11, 2008. Petitioner submitted a timely Notice to Appeal to the Court of Appeals for the Third Circuit, and on February 20, 2009 a Federal Rule of Appellate Procedure Rule 10(e) hearing was held to expand the record for appellate review. On July 9, 2009 the Third Circuit Court of Appeals sustained this Court‟s ruling and the conviction. United States v. Riley, 336 Fed. App‟x 269, (3d Cir. 2009), cert. denied, 130 S. Ct. 1034.

Riley premised his appeal solely on the allegation that improper communication between the jury and the undersigned entitled him to a new trial. Fifteen minutes after the jury retired to deliberate, it requested an incident report from the Newark Police Department that had been discussed at trial. Defense counsel suggested that the reply be written on the back of the note.

Soon after this response was delivered, the jury sent out a second note again asking for the incident report. The undersigned then entered the jury room and explained to the jurors that they could not have the report as it was not in evidence. The jury returned its verdict soon after. The Third Circuit found that this was a harmless error and that the record demonstrated no reasonable possibility the exchange prejudiced the jury.

Riley‟s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence was received on April 26, 2010. The Government filed an Answer on July 15, 2010, to which Riley replied on August 5, 2010. This Court granted Riley‟s motion for leave to file an amended petition pursuant to Rule 15 of the Federal Rules of Civil Procedure on June 7, 2011. Following the general mandate to construe the pleadings of pro se litigants liberally, see Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), Riley‟s amended petition appears to supplement rather than replace his original petition.

II. Standard of Review Under § 2255

A prisoner in federal custody may file a motion in the trial court challenging the validity

of his sentence. 28 U.S.C. § 2255; Morelli v. United States, 285 F. Supp. 2d 454, 458 (D.N.J. 2003). A sentence shall be deemed unlawful if it was: (1) imposed in violation of the Constitution or laws of the United States; (2) imposed by a court lacking jurisdiction; (3) in excess of the maximum authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255. Habeas corpus relief is available to "protect against a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure. Accordingly, petitioner must establish that such an event has occurred in order to be successful on his claim." United States v. Deluca, 889 F.2d 503, 506 (3d. Cir. 1989).

A defendant has one year in which to file a request for habeas relief under § 2255. 28 U.S.C. § 2255(f). This period runs from the latest of four specified events, one of which is the date on which the judgment of conviction becomes final. *fn2 28 U.S.C. § 2255(f)(1)-(4). A conviction becomes final when the United States Supreme Court denies a petition for a writ of certiorari, see Clay v. United States, 537 U.S. 522, 527 (2003), ...


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