United States District Court, D. New Jersey
ALSHARIF L. SCRIVEN, Petitioner,
UNITED STATES, Respondent.
SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE
or about September 9, 2017, Petitioner, Alsharif L. Scriven,
filed a motion to vacate his December 2015 conviction
pursuant to 28 U.S.C. § 2255. (ECF No. 1).
September 28, 2017, this Court administratively terminated
this matter as Petitioner had not filed his motion on the
required form. (ECF No. 2).
or about October 19, 2017, Petition filed an amended motion
to vacate sentence on the required form. (ECF No. 3).
October 26, 2017, this Court entered an order directing
Petitioner to show cause why his amended motion should not be
dismissed as time barred within thirty days. (ECF No. 4).
Petitioner was informed in that order that failure to respond
could result in the dismissal of his § 2255 motion with
prejudice as time barred. (Id.).
November 27, 2017, Petitioner filed with the Court a letter
requesting a forty-five day extension of time within which to
respond to the show cause order. (ECF No. 5). This Court
granted that request on November 30, 2017, and directed
Petitioner to file his response within forty-five days. (ECF
No. 6). Despite the passage of more than three months,
Petitioner has not filed a response. (ECF Docket Sheet).
this Court previously explained to Petitioner,
this Court is required to review Petitioner's motion
pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings and “dismiss the motion” if it
“plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” Pursuant to the rule,
this Court is “authorized to dismiss summarily any
habeas [motion] that appears legally insufficient on its
face.” McFarland v. Scott, 512 U.S. 849, 856
Motions brought pursuant to 28 U.S.C. are subject to a one
year statute of limitations. 28 U.S.C. § 2255(f). That
limitation period begins to run from the latest of the
following events: the date on which the Petitioner's
conviction becomes final, which includes the time in which a
Petitioner could have filed an appeal where he fails to do
so, see Kapral v. United States, 166 F.3d 565, 577
(3d Cir. 1999); the date on which an impediment created by
the Government is removed; the date on which the right
asserted was first recognized by the Supreme Court where a
new right has been recognized by the Court and made
retroactive to cases on collateral review; or the date on
which the facts supporting the claim first became
discoverable through due diligence. See 28 U.S.C.
§ 2255(f)(1)-(4). As a criminal defendant must file his
notice of appeal from his conviction within fourteen days,
the conviction of a petitioner who fails to file a direct
appeal becomes final for statute of limitations purposes
fourteen days after his sentencing. See Johnson v. United
States, 590 F. App'x 176, 177 (3d Cir. 2014);
see also Kapral, 166 F.3d at 577; Fed. R. App. P.
In this matter, Petitioner pled guilty and was thereafter
sentenced in December 2015, with his judgment of conviction
being entered on December 3, 2015. (ECF No. 3 at 1). By his
own admission, Petitioner did not appeal, (see id.),
and his conviction therefore became final fourteen days later
on December 17, 2015. Thus, to the extent that his statute of
limitations ran from the date on which his conviction became
final, that limitations period expired as of December 17,
2016, some nine months before Petitioner filed his initial
motion to vacate sentence. Absent an alternate date for the
running of the statute of limitations or equitable tolling,
Petitioner's current motion is thus time barred.
Equitable tolling “is a remedy which should be invoked
‘only sparingly.'” United States v.
Bass, 268 F. App'x 196, 199 (3d Cir. 2008) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir.
1998)). To receive the benefit of equitable tolling in a
§ 2255 matter, a petitioner must show “(1) that he
faced ‘extraordinary circumstances that stood in the
way of timely filing, ' and (2) that he exercised
reasonable diligence.” Johnson, 590 F.
App'x at 179 (quoting Pabon v. Mahanoy, 654 F.3d
385, 399 (3d Cir. 2011)).
In his amended motion to vacate sentence (ECF No. 3),
Petitioner fails to provide the Court with any basis for
finding that he is entitled to equitable tolling of the
§ 2255 limitations period, and this Court perceives no
such basis from the face of the amended motion. As such, it
appears from the amended motion that ...