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United States v. Baker

United States District Court, D. New Jersey

February 28, 2018

UNITED STATES OF AMERICA
v.
JOSEPH BAKER, JR., Defendant.

          MEMORANDUM OPINION

          MARY L. COOPER United States District Judge.

         Defendant, Joseph Baker, Jr., pro se, has filed two related motions in this closed criminal case, seeking to delete or challenge certain conditions of supervised release contained in the Judgment of Conviction (“Judgment”) entered in this case on May 28, 2010.[1] For the following reasons, those motions are denied. Motion 56 The first pending motion is entitled “Defendant's Expedited Motion to Correct Clerical Error under Federal Rules of Criminal Procedure 36.” (Dkt. entry no. (“Dkt.”) 56.)[2] This motion seeks to delete one sentence in the Judgment of Conviction, as follows: “You shall alert all medical professionals of any prior substance abuse history, including any prior history of prescription drug abuse.” (Judgment, dkt. 34 at 3.) Defendant argues that this sentence in the Judgment was a “clerical error” because this particular sentence was not orally pronounced by the Court during his sentencing hearing, and therefore the Court should now delete that sentence from the Judgment pursuant to F.R.Crim.P. 36 (“Rule 36”). (Dkt. 56 at 3-5.) The Court will deny this motion as untimely.

         Defendant was sentenced on May 14, 2010. (Minute Entry, dkt. 33.) A transcript of the sentencing hearing is on the docket. (Sen. Transcript, dkt. 38.) Defendant is correct that the particular sentence to which he now objects was not orally pronounced by this Court in the language used to impose his sentence at the sentencing hearing. (Id. at 25.) That sentence was, however, included in the written Judgment as part of the particulars of the special condition of his sentence requiring drug testing and treatment. (Judgment, dkt. 34 at 3.)

         Rule 36 provides in pertinent part: “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment....” (Rule 36, emphasis added.) By its express terms, Rule 36 is discretionary. The error of which defendant complains in this motion is not an error at all. The fact that the additional sentence is in the Judgment but was not pronounced in the verbatim words of the Court at the sentencing hearing is an immaterial difference not requiring correction.

         It is well settled that in general, alleged errors that could have been, but were not, raised on direct appeal, may not later be attacked by collateral challenge, absent a showing of cause and prejudice. See, e.g., United States v. Frady, 456 U.S. 152, 162-63 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Although defendant styles his motion as a simple motion under Rule 36, it is actually an attempt to raise a collateral challenge alleging clerical error as to one sentence in his Judgment. This attempt is untimely in the extreme, as it could have been asserted on direct appeal. Defendant did not file an appeal from the Judgment, and his time to have done so has long since expired.[3] Accordingly, assuming arguendo that the Court would have the authority at this time to correct the Judgment as requested under Rule 36, the Court will exercise its discretion and deny this motion as untimely.

         Motion 57

         The next motion is entitled “Defendant's Expedited Motion for Alternative Writ of Relief under the All Writs Act, 28 U.S.C. § 1651(b).” (Dkt. 57.)[4] This motion requests that “a new sentencing hearing can be held in this case in order for the Court to explain and justify its written discretionary conditions of supervised release as to Baker.” (Id. at 1.) In this motion, defendant argues that the Court should not have imposed the Standard Conditions of Supervised Release, as set forth in the Judgment (dkt. 34 at 4-5), without explaining to him, and justifying under the sentencing statute, each of those standard conditions imposed upon him at his sentencing hearing. (Dkt. 57 at 2-4.)

         Defendant is correct that at his sentencing hearing, this Court did not list each of the Standard Conditions of Supervised Release on the record, or explain why they should be imposed upon him in his sentence. On that topic, at the sentencing hearing on May 14, 2010, the Court stated, as was customary at the time:

While on supervised release, he shall not commit another federal, state or local crime, shall be prohibited from possessing a firearm, or other dangerous device, and shall not possess an illegal controlled substance and shall comply with the other standard conditions that have been adopted by this Court; and he must submit to one drug test within 15 days of commencement of supervised release, and at least two tests thereafter, as determined by the Probation Officer.

(Sen. Transcript, dkt. 38 at 25.)

         Defendant seeks in this motion a new sentencing hearing. There are twenty (20) Standard Conditions of Supervised Release included and printed in his Judgment. (Dkt. 34 at 4-5.) He did not file an appeal from his conviction and sentence, despite having been informed at the sentencing hearing of his rights concerning taking a direct appeal in his case. (Sen. Transcript, dkt. 38 at 26; see n.3, supra.) He did not file a motion under 28 U.S.C. § 2255 asserting collateral challenges to his sentence, and the time to have filed such a collateral challenge has also long since expired.[5] Nor has he stated any sufficient ground for equitable tolling so as to avoid the procedural bar and assert such a collateral challenge at this time. He has had a copy of his Judgment since it was entered, and only when he was nearing the time for commencement of his supervised release did he file these two related motions.[6] His invocation of the All Writs Act does not avoid those procedural bars, because it is well settled that “[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.” Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). Where, as here, “a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling.” Id. For these reasons, his motion seeking a new sentencing hearing regarding his standard conditions of supervised release must be denied as untimely.

         Conclusion

         The Court will issue an appropriate Order on these ...


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