JOSEPHUS T.Y. NYEMA, SR., Petitioner,
STATE OF NEW JERSEY, Respondent.
JOSEPHUS T.Y. NYEMA, SR., Petitioner pro se, Trenton, New Jersey.
MICHAEL A. SHIPP, District Judge.
This matter is before the Court upon the motions of Petitioner Josephus T. Y. Nyema, Sr. ("Nyema") for reconsideration (ECF No. 15) of this Court's May 17, 2013 Opinion and Order (ECF Nos. 13, 14), which dismissed with prejudice Nyema's habeas petition; and for leave to file an amended Petition out of time. (ECF No. 16.) The Court directs the Clerk of the Court reopen this case to allow for review of Nyema's motions. The Court resolves Nyema's motions on the papers and without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1 (b). Because Nyema has not satisfied the standard applicable to motions for reconsideration, and granting him leave to amend would be futile, the Court concludes that the motions should be denied.
On November 13, 2012, Nyema filed a petition for habeas relief, pursuant to 28 U.S.C. § 2241, challenging a 2005 criminal judgment of conviction issued by the Superior Court of New Jersey, Law Division, Mercer County. Nyema had been sentenced to a term of probation for three years on August 26, 2005. (Petition at¶¶ 1-5.) However, at the time that Nyema submitted his habeas petition for filing, he was no longer in the custody of the State of New Jersey pursuant to the August 2005 judgment of conviction that he challenges in his habeas petition. In fact, Nyema was not incarcerated in any correctional facility at the time he filed his habeas petition.
In this Court's May 17, 2013 Opinion and Order dismissing Nyema's petition, the Court noted that Nyema had filed two prior actions in the District Court of New Jersey challenging this particular state court conviction. Nyema's previous habeas actions were dismissed for lack of jurisdiction. See Nyema v. State of New Jersey, Civil No. 09-69 (MLC); Nyema v. State of New Jersey, Civil No. 10-2933 (MLC).
In his first habeas petition, Nyema v. State of New Jersey, Civil No. 09-69 (MLC), Nyema admitted that he had appealed his August 2005 conviction to the Superior Court of New Jersey, Appellate Division. On November 16, 2007, the Appellate Division affirmed his conviction. The New Jersey Supreme Court denied certification on February 28, 2008. He then filed a petition for a writ of certiorari to the Supreme Court of the United States, which was denied on October 6, 2008. (See Civil No. 09-69 (MLC) at ECF No. 1 at ¶¶ 9, 12.)
In an Opinion and Order entered on August 3, 2009, the Honorable Mary L. Cooper, U.S.D.J., dismissed Nyema's first habeas action, Nyema v. State of New Jersey, Civil No. 09-69 (MLC), for lack of jurisdiction because Nyema did not satisfy the "in custody" jurisdictional requirement applicable to habeas actions under § 2254(a) and § 2241(c)(3), at the time he filed his petition for habeas relief. (Id. at ECF Nos. 5, 6.) On November 28, 2011, Nyema filed a notice of appeal from Judge Cooper's decision with the United States Court of Appeals for the Third Circuit, which by Order dated February 3, 2012, dismissed Nyema's appeal for lack of appellate jurisdiction. (Id., ECF Nos. 8 and 12, respectively.)
On June 9, 2010, before Nyema filed his notice of appeal to the Third Circuit, Nyema filed a second habeas action challenging his same 2005 New Jersey state court judgment of conviction. (See Nyema v. State of New Jersey, Civil No. 10-2933 (MLC), ECF No. 1.) In the second action, Nyema characterized his petition as a writ of error coram nobis. (Id. ) Nyema filed an amended petition on July 12, 2010. (Id., ECF No. 2.) Nyema stated that, on or about April 9, 2008, he had filed a pro se petition for post-conviction relief ("PCR") in state court, alleging various claims of ineffective assistance of trial counsel. The state PCR judge denied Nyema's PCR petition by Order dated September 30,2009. (Id., ECF No.2 at¶¶ 14-16.)
In an Opinion and Order entered on December 13, 2010, Judge Cooper dismissed Nyema's second petition for lack of jurisdiction because Nyema did not satisfy the "in custody" jurisdictional requirement applicable to habeas actions under§ 2254(a) and § 2241(c)(3). (Id., ECF Nos. 5, 6.) Moreover, Judge Cooper noted that the District Court lacked jurisdiction to issue a writ of error coram nobis in Nyema's case because "coram nobis is not available in a federal court as a means of attack on a state criminal judgment." (Id., ECF No. 5 at 3.) (citations omitted). Nyema again appealed from the dismissal order, and on January 26, 2012, the Third Circuit dismissed the appeal for lack of appellate jurisdiction. (Id., ECF Nos. 8 and 11, respectively.)
On January 24, 2012 and November 9, 2012, Nyema sought to re-open his first habeas action in Nyema v. State of New Jersey, Civil No. 09-69 (MLC), and he filed another petition for habeas relief. (See Nyema v. State of New Jersey, Civil No. 09-69 (MLC), ECF Nos. 11, 13 and 14.) In an Opinion and Order issued on November 13, 2012, Judge Cooper denied Nyema's request tore-file and re-open his habeas action. (Id., ECF Nos. 15, 16.) In a letter request filed on November 28, 2012, Nyema again asked to re-open his case. Judge Cooper denied the request in a Notice and Order dated November 28, 2012. (Id., ECF Nos. 17 and 18, respectively.)
While Nyema's applications to re-open his earlier action were pending, and despite several Orders from the District Court and the Third Circuit dismissing Nyema's prior habeas applications, Nyema submitted this third habeas petition, pursuant to 28 U.S.C. § 2241, challenging the very same 2005 New Jersey state court conviction long after his three-year probation term had expired in 2008. In the May 17, 2013 Opinion, this Court determined that Nyema's habeas challenge to his 2005 state court conviction was properly designated as a habeas action under 28 U.S.C. § 2254. Further, the Court found that it lacked jurisdiction to review the petition because Nyema was no longer "in custody" pursuant to the challenged conviction. See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490-92 (1989). (ECF No. 13 at 5-6.)
The Court also found that Nyema was not entitled to relief under a writ of error coram nobis because the writ of error coram nobis is available in federal court only for those who were convicted in federal court. 28 U.S.C. 1651(a); Neyor v. INS., 155 F.Supp.2d 127, 136 (D.N.J. 2001). (ECF No. 13 at 7.) Finally, the Court commented on the repetitious applications filed by Nyema on the very same issue despite the fact that the District Court and the Third Circuit have ruled clearly and conclusively that federal habeas relief is unavailable to Nyema because he no longer is "in custody" pursuant to the judgment of conviction that he is challenging. Indeed, the Court observed that Nyema has been advised repeatedly that his only recourse to challenge his state court conviction is a writ of coram nobis in state court where the judgment of conviction was entered. (Id. )
On May 28, 2013, Nyema filed a motion for reconsideration of the May 17, 2013 Order dismissing his petition for lack of "in custody" jurisdiction. (ECF No. 15.) In his motion, Nyema alleges that his former counsel had written to Nyema on March 18, 2008, advising Nyema that he had one year to file a habeas petition in federal court. Based on this counsel, Nyema filed his first pro se petition on December 30, 2008, under Civil No. 09-69 (MLC). (Id. at¶ 12.) Nyema contends that he should not be "punished" for his legal counsel's advice about the timing for ...