United States District Court, D. New Jersey
William H. Walls, Senior United States District Judge
matter has been opened to the Court by David James Ward's
("Petitioner" or "Mr. Ward") filing of a
"MOTION PURSUANT TO FEDERAL RULES OF CRIMINAL PROCEDURE
12(b)(2) FAILURE OF AN INDICTMENT TO STATE AN OFFENSE IS A
FUNDAMENTAL DEFECT AND IT CAN BE RAISED AT ANY TIME"
(Civ. Act. No. 17-2301, ECF No. 1), which was docketed as a
motion to vacate sentence pursuant to 28 U.S.C. § 2255.
Court must screen the Motion for summary dismissal pursuant
to Rule 4 of the Rules Governing Section 2255 Cases in the
United States District Court, to determine whether it
"plainly appears from the motion, any attached exhibits
and the record of prior proceedings that the moving party is
not entitled to relief..."
than twenty years ago, in January 1996, Petitioner was
indicted on one count of kidnapping in violation of 18 U.S.C.
§ 1201. Petitioner pled guilty to the indictment in July
1996. (See Application for Permission to Enter Plea
of Guilty, United States v. Ward, No. 96-61 (D.N.J.
July 10, 1996.) On January 7, 1997, the district court
sentenced Ward to 720 months imprisonment. See United
States v. Ward, 131 F.3d 335, 338 (3d Cir. 1997).
Petitioner appealed and the Third Circuit affirmed his
sentence.  Id. at 343. Petitioner did
not file a petition for writ of certiorari.
Ward has since filed at least six challenges to his sentence,
and the Court recently dismissed as second or successive a
§ 2255 petition that raised the same claim he now brings
in the instant Petition. See Ward v. United States,
No. CV 16-4101 (WHW), 2016 WL 6090728, at * 1-2 (D.N.J. Oct.
18, 2016) (recounting Petitioner's prior challenges to
his sentence). Petitioner appealed, and the Third Circuit
denied a certificate of appealability. (See Civ.
Act. No. 16-4101, ECF Nos. 11-12.)
caption for the instant motion lists the docket number in
Petitioner's criminal case, i.e., Criminal Act.
No. 96-61 (WHW), and the motion itself does not state that
Mr. Ward is seeking to bring yet another motion to vacate
sentence pursuant to § 2255. To the extent the instant
motion can be construed as a motion to vacate sentence
pursuant to § 2255, it is subject to dismissal for lack
of jurisdiction, as Mr. Ward has previously challenged his
sentence pursuant to § 2255 and has not sought
permission from the Circuit to file a second or successive
petition. Before this Court may consider a
second or successive § 2255 motion, Petitioner must
obtain an order of authorization from the Third Circuit.
See 28 U.S.C. § 2255(h); 28 U.S.C. § 2255
Rule 9. As Petitioner has not obtained such an order, this
Court must either dismiss the motion or transfer it to the
Third Circuit. See United States v. Hawkins, 614
Fed.Appx. 580, 582 (3d Cir. 2015). The Court finds that it is
not in the interests of justice to transfer the motion to the
Third Circuit as it does not appear that Petitioner can
satisfy the requirements of § 2255(h) because his claims
are not based on a new Supreme Court decision or newly
Court will also deny a certificate of appealability.
See 28 U.S.C. § 2253(c)(1)(B) (appeal may not
be taken from a final order in a proceeding under 28 U.S.C.
§ 2255 unless a circuit justice or judge issues a
certificate of appealability). The United States Supreme
Court held in Slack v. McDaniel that "[w]hen
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a CO A should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." 529 U.S. 473, 484
(2000). This Court denies a certificate of appealability
because jurists of reason would not find it debatable that
dismissal of the motion as second or successive is correct
because, as stated, Petitioner's claims are not based on
newly discovered evidence or a new Supreme Court decision.
the extent Petitioner's submission may be construed as a
criminal motion, the Court denies the motion as untimely, as
Fed. R. Crim. P. 12(b)(2) does not permit a criminal
defendant to seek relief where his case is no longer
"pending." See, e.g., United States v.
Rashid, 654 F.App'x 54, 57 (3d Cir. 2016) (assuming
without deciding, in relevant part, that a case may still be
"pending" for purposes of Rule 12(b)(2) where
direct appeal had concluded but the time for filing a
petition for certiorari had not expired), cert,
denied, 137 S.Ct. 1099, 197 L.Ed.2d 206 (2017). Here,
Petitioner's direct appeal concluded nearly twenty years
ago. As such, the time for filing a motion under Fed. R.
Crim. P. 12(b)(2) has long expired. For that reason,
Petitioner's motion for relief under Rule 12(b)(2) is
denied as untimely. An appropriate Order follows.
 Petitioner argued that the
district court erred when it ordered him to undergo the blood
test for the presence of HIV and when it departed upwardly
based on his having committed a similar sexual assault in
1983 in Minnesota. Third Circuit affirmed the judgment of the
district court except as to its order with respect to
Ward's blood testing, which it vacated pending the
district court's making the findings required by the
Violence Against Women Act, 42 U.S.C. § 14011(b)).
Federal courts may, but are not
required to, "ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion
in order to place it within a different legal category."
Castro v. United ...