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Spencer v. United States

United States District Court, D. New Jersey

November 1, 2018






         Petitioner Shaamel Spencer, a prisoner presently confined at the Federal Correctional Institution at McKean in Bradford, Pennsylvania, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 1. He later filed an Amended Motion, ECF No. 5 (the “Petition”), and a supplemental brief, ECF No. 7. Respondent filed an Answer in which it argued that the Petition was untimely. ECF No. 12. Petitioner has not filed a reply. For the reasons that follow, the Court will deny the Petition as untimely.

          I. BACKGROUND

         On April 14, 2014, Petitioner pled guilty to a two-count information charging him with conspiring to possess with intent to distribute 100 grams or more of heroin and possession of two firearms by a convicted felon. See No. 14-cr-50, ECF Nos. 140 (Information); 143 (plea agreement). In the plea agreement, Petitioner stipulated that he was a “career offender” under the provisions of U.S.S.G. § 4B1.1, that his total offense level was 31, and that his criminal history category was VI. No. 14-cr-50, ECF No. 143. In addition, Petitioner agreed to waive his right to file an appeal or collateral attack on his sentence if he was sentenced within or below the Guidelines range resulting from a total Guidelines offense level of 31. See id. at 8.

         At sentencing before the Honorable Joseph E. Irenas, the Court found that Petitioner was a career offender with a total offense level of 31 and a criminal history category of VI, with a resulting advisory guideline range of 188 to 235 months. See No. 14-cr-50, ECF No. 12-3 (sentencing transcript). The government asked for a sentence within the middle of the guideline range, and Petitioner asked for a downward variance and a sentence of 120 months' imprisonment. Id. The Court granted a downward variance to Level 29 and then sentenced Petitioner to 151 months' imprisonment, which was at the bottom of the advisory guideline range at Level 29, Criminal History Category VI.[1] See No. 12-3 (sentencing transcript). The Court entered the judgment of conviction on July 23, 2014. No. 14-cr-50, ECF No. 246. Petitioner did not file an appeal.

         Petitioner later filed a letter with the Court on April 11, 2016, inquiring about the status of his case in light of the Supreme Court's ruling that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, citing Johnson v. United States, 135 S.Ct. 2551 (2015). See No. 14-cr-050, ECF No. 858. On June 24, 2016, Petitioner, through counsel, filed a motion to correct his sentence under 28 U.S.C. § 2255 claiming that he was incorrectly determined by the sentencing court to be a “career offender” in light of Johnson. See No. 14-cr-050, ECF No. 871; No. 16-cv-3733, ECF No. 1. On June 29, 2017, Petitioner filed a notice of voluntary dismissal of that § 2255 motion after the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). No. 16-cv-3733, ECF No. 4.

         On June 23, 2017, Petitioner filed a new Motion to Vacate, Set Aside or Correct Sentence pursuant 28 U.S.C. § 2255, the date on which he placed it in the prison's mailing system. ECF No. 1 at 5. It was filed on the docket a few days later, on June 28, 2017. See ECF No. 1. At the direction of the Court, Petitioner filed an amended motion utilizing the correct form. ECF No. 5. In his Petition, Petitioner raises as grounds for relief the ineffectiveness of his trial counsel[2] and a claim based on the Supreme Court's holding in Mathis v. United States, 136 S.Ct. 2243 (2016). ECF Nos. 1, 5. On January 29, 2018, Petitioner filed a motion to supplement the pending § 2255 petition. ECF No. 7. On February 1, 2018, the Court granted Spencer's motion to supplement the pending § 2255 motion to correct the sentence. ECF No. 8. The supplemental brief includes additional argument and authority in support of the claims raised in the Petition. See ECF No. 7.


         A. Timeliness

         Section 2255 provides a one-year statute of limitations from the date on which the petitioner's conviction becomes final or from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(1) & (3).

         Here, Petitioner's sentence became final on or about August 6, 2014, after the time for filing an appeal expired. See Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (holding that a judgment is determined to be final by the conclusion of direct review, or the expiration of time for seeking such review). The Petition, however, was not filed until on or about June 23, 2017. ECF No. 1 at 5 (certificate of service providing that Petitioner placed the Petition in the mail on June 23, 2017). 2018”). See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (under the prison mailbox rule, “a pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing[.]”). Thus, the Petition was filed beyond the expiration of the applicable one-year statute of limitations period contained in § 2255(f)(1).

         Petitioner does not address the issue of timeliness in either his Petition or his Amended Petition other than to state that the grounds for relief were not apparent until after the Mathis decision or after he researched them. See ECF No. 5 at 5. Because the Petition includes a Mathis claim, the Court will presume in light of Petitioner's pro se status that Petitioner is asserting that Mathis ...

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