The opinion of the court was delivered by: Honorable Jerome B. Simandle
This matter comes before the Court on William Brown's petition for relief of judgment, filed pursuant to Fed. R. Civ. P. 60(b)(6). [Docket Item 20.] Under Fed. R. Civ. P. 60(b)(6), "the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . any other reason that justifies relief."*fn1 Petitioner claims that he was prevented from mailing the petition in a timely manner because the prison at which he was incarcerated, United States Penitentiary -- Canaan ("USP -- Canaan"), was "on lock-down." The Government has filed opposition. [Docket Item 25.] This Court finds as follows:
1. Petitioner was convicted by a jury of six counts relating to a 2005 armed home invasion and sentenced by this Court to imprisonment for a term of 480 months. After losing his appeal, see United States v. Hernandez, 306 Fed. Appx. 719 (3d Cir. 2009), he petitioned the Supreme Court for a writ of certiorari. On May 26, 2009, the Supreme Court denied the writ. He then petitioned for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2255, challenging his conviction by this Court on grounds of ineffective assistance of counsel. Brown v. United States, No. 10-2784, 2011 WL 2148181, at *1 (D.N.J. May 31, 2011). As explained in this Court's May 31, 2011, Opinion on the matter, the petition was denied as untimely because it was filed one day late.*fn2 Id. at *2. More specifically, federal law requires that petitions under 28 U.S.C. § 2255 be filed within one year of certain statutory benchmarks, depending on the reason for the relief sought. 28 U.S.C. § 2255. Petitioner's claims required the petition to be filed within one year of "the date on which the judgment of conviction becomes final." Id. If a petition for writ of certiorari is filed with the Supreme Court and denied, the conviction becomes final on the date of the denial. Id. (citing Clay v. United States, 537 U.S. 522, 525--32 (2003)). Therefore, because the Supreme Court denied the writ on May 26, 2009, and the petition was filed on May 27, 2010, the petition was late. Id.
2. Petitioner, acting pro se, filed the instant motion under 28 U.S.C. § 2255 pursuant to Fed. R. Civ. P. 60(b)(6). [Docket Item 20.] Petitioner claims that "extraordinary circumstances" exist justifying relief from this Court's previous judgment denying post-conviction relief under 28 U.S.C. § 2255; that he is entitled to statutory tolling under 28 U.S.C. § 2255(f)(2) based on unconstitutional government interference which prevented him from filing his motion on time; and that he is entitled to equitable tolling. [Id.] Petitioner further requests that this Court issue a certificate of appealability if this Court denies his Rule 60(b)(6) motion. [Id.]
3. In support of these claims, Petitioner presented an unsworn memorandum from Aaron Gardea, Unit Manager at United States Penitentiary -- Atwater, the California institution in which Petitioner is now confined, stating that Petitioner was not able to proceed with his legal process in a timely manner because USP -- Canaan was on lock-down. [Docket Item 20, Exhibit No. 2.] Gardea gives no indication of the source of his information about the supposed lock-down at USP -- Canaan almost 19 months earlier and 2,500 miles away. It certainly does not appear to come from official files, and presumably it merely repeats hearsay from Petitioner himself.
4. The Gardea document, itself, also raises questions about its trustworthiness, as it does not read as if a knowledgeable professional in the Federal Bureau of Prisons wrote it. In its entirety, the Gardea memorandum states:
This memorandum serves as verification that inmate Brown is in the process of filing 60(b)(6) motions with regard to criminal number 06-126(JBS) [sic], in the United States District Court, Eastern District of New Jersey [sic]. Due to inmate Brown's previous institution (USP Canaan) being on lock-down; [sic] he was not able to proceed with his legal process in a timely manner.
Inmate Brown [sic] initial filing was placed in the outgoing mail at the previous institution on May 24, 2010. It was returned to him the next day. When the institution returned to normal operations, inmate Brown was able to hand delivered [sic] his legal mail to the institution's mail room staff on May 27, 2010.
5. Hearsay is not admissible unless it falls under one of the hearsay exceptions. Fed. R. Evid. 802. Under Fed. R. Evid. 803(8), a record or statement of a public office is not excluded by the rule against hearsay if "neither the source of information nor other circumstances indicate a lack of trustworthiness." Similarly, under Fed. R. Evid. 803(6), records of a regularly conducted activity are not excluded if "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness." Because Gardea's unsworn memorandum lacks a foundation and indicates a lack of trustworthiness, it is not admissible under either of these hearsay exceptions.
6. In their response brief, the Government argues that Petitioner cannot show that his untimely petition was the result of some extraordinary circumstance because Petitioner's claim, that USP -- Canaan was on lock-down, is directly contradicted by the prison records. [Docket Item 25.] In his affidavit, Enrique Pabon, a Senior Investigative Agent at USP -- Canaan, stated that between May 20, 2010, and May 31, 2010, USP -- Canaan was not on lock-down, there were no incidents that would have led to a lock-down, the mail logs revealed no interruptions in the processing of inmate mail, and Petitioner was not held in any type of detention that would have prevented him from placing his petition in the outgoing mail. [Id., Exhibit A.] In other words, a declaration under penalty of perjury by an official with personal knowledge at USP -- Canaan establishes that there was no lock-down and no interruption in the ordinary processing of mail at USP -- Canaan, and no detention that prevented Petitioner brown from timely mailing, during the period of May 20-31, 2010. 7. Fed. R. Civ. P. 60(b) provides:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...