United States District Court, D. New Jersey
C. TATE GEORGE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
E. THOMPSON U.S. District Judge.
matter comes before the Court on Petitioner C. George
Tate's motion for judgment on the pleadings, (ECF No.
29), and Motion Under Rule 1003 (ECF No. 34). For the reasons
stated herein, the motions are denied.
was convicted of four counts of wire fraud, 18 U.S.C.
§§ 1343 & 2, after a jury trial before the
Honorable Mary L. Cooper, U.S.D.J. United States v.
George, No. 12-cr-0204 (D.N.J. Jan. 21, 2016). The
United States Court of Appeals for the Third Circuit affirmed
the convictions and 108-month sentence in April 2017.
United States v. George, 684 Fed.Appx. 223 (3d Cir.
2017). Petitioner filed his motion to correct, vacate, or set
aside his federal sentence under 28 U.S.C. § 2255 on
April 28, 2017. (ECF No. 1). Judge Cooper administratively
terminated the motion on May 1, 2017 as Petitioner had not
used the form provided by the Clerk's Office for §
2255 motions. (ECF No. 2). Petitioner resubmitted his
petition on the proper form on July 7, 2017. (ECF No. 7). The
matter was reassigned to the undersigned on July 24, 2017.
Petitioner filed several motions to amend his petition as
well as several supplemental exhibits, the Court issued an
order to answer on September 1, 2017. (ECF No. 16).
Respondent did not file its answer within the time frame
ordered by the Court, and the Court issued an Order to Show
Cause on November 20, 2017. (ECF No. 25). Respondent answered
the Order to Show Cause and requested until January 21, 2018
to answer the motion. (ECF No. 27). The Court vacated the
Order to Show Cause and granted the request. (ECF No. 28).
Petitioner filed this motion for judgment on the pleadings.
(ECF No. 29).
sent seventeen binders containing approximately 3, 000 pages
to chambers claiming they were "exculpatory and
impeaching" evidence trial counsel failed to present at
trial. (See ECF No. 31). The Court returned the
binders to Petitioners unfiled and issued an order
prohibiting him from sending further filings to chambers.
(ECF No. 32). Petitioner thereafter filed a motion citing
Federal Rule of Evidence 1003 and asking to file the binder
materials without resubmitting them to the Court or sending
copies of the binders to Respondent.
motion for judgment on the pleadings should be granted if the
movant establishes that 'there are no material issues of
fact, and he is entitled to judgment as a matter of
law.'" Zimmerman v. Corbett, 873 F.3d 414,
417 (3d Cir. 2017) (quoting Sikirica v. Nationwide Ins.
Co., 416 F.3d 214, 220 (3d Cir. 2005)). The Court
"must view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most favorable
to the nonmoving party." Sikirica, 416 F.3d at
220. Petitioner's sole argument in support of his motion
is that Respondent failed to file a timely answer. This is
not an argument for judgment on the pleadings; Petitioner is
asking for a default judgment.
Court noted in its opinion denying Petitioner's prior
motion for a default judgment, "[d]efault judgment is
inapplicable in the habeas context." Riley v.
Gilmore, No. 15-351, 2016 WL 5076198, at *1 n.2 (E.D.
Pa. Sept. 20, 2016), certificate of appealability denied
sub nom. Riley v. Superintendent Greene SCI, No.
16-3954, 2017 WL 5068120 (3d Cir. Feb. 9, 2017). See also
In re West, 591 Fed.Appx. 52, 54 n.3 (3d Cir. 2015)
("Even if the Government had failed to respond to the
§ 2255 motion, it does not follow that West is entitled
to a default judgment."). "Indeed, the rule of
civil procedure governing entry of default, Rule 55(d),
specifically states that a 'default judgment may be
entered against the United States ... only if the claimant
establishes a claim or right to relief by evidence that
satisfies the court' even outside of the habeas
context." Norwood v. United States, No.
15-2996, 2015 WL 5822874, at *3 (D.N.J. Sept. 30, 2015)
(quoting Fed.R.Civ.P. 55(d) (omission in original)). The case
cited by Petitioner, Consolidated Freightways Corporation
of Delaware v. Larson, 827 F.2d 916 (3d Cir. 1987), is
inapplicable as it is an analysis of Federal Rule of
Appellate Procedure 4. Petitioner has not provided sufficient
evidence to satisfy the Court he is entitled to relief under
Rule of Evidence 1003 is not an independent basis for
admissibility. It merely permits the party to provide a
duplicate instead of the original "[w]hen the only
concern is with getting the words or other contents before
the court with accuracy and precision ...." Fed.R.Evid.
1003 Advisory Committee Note. Petitioner has not resubmitted
the proposed evidentiary materials, nor has he complied with
the Court's instructions to file "a formal motion to
supplement or amend Petitioner's § 2255 petition
with specific explanations as to how each document is
relevant to his § 2255 motion." (ECF No. 32). Nor
has he served Respondent with a copy of the materials so that
it may respond to them.
motions are denied.
reasons stated above, Petitioner's motions are denied. An