United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
petitioner, Gregory Perry, is a federal prisoner proceeding
pro se with a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Mr. Perry has also
filed a motion for an evidentiary hearing and a motion for
pro bono counsel. For the following reasons, Mr. Perry's
§ 2255 motion will be denied, as will his motion for an
evidentiary hearing and his motion for pro bono counsel.
The Underlying Criminal Proceeding
Court of Appeals for the Third Circuit succinctly described
the underlying circumstances as follows:
In May 2008 law enforcement officers determined that Perry
was a suspect in a string of burglaries. On June 10, 2008,
officers observed Perry make furtive movements as he entered
a vehicle. The officers stopped him and he informed them that
there was marijuana in the vehicle. A search of Perry's
vehicle revealed, among other things, a loaded 9 mm handgun,
heroin, marijuana, and burglar's tools.
United States v. Perry, 460 Fed.Appx. 149, 151 (3d
specifically, on June 10, 2008, Detective James McMorrow and
Detective Sergeant Chris Stefanacci of the Bergen County
Prosecutor's Office were conducting surveillance of Mr.
Perry as part of an ongoing investigation into numerous
burglaries that had been committed in the Englewood, New
Jersey area. (DE 7-5, Ex. D, at 1.) The detectives saw Mr. Perry
approach a vehicle where he "remove[d] an item from his
waistband area and place[d] it in the rear of the
vehicle." (Id. at 2.) Mr. Perry drove away, and
the detectives followed. (Id., ) The detectives
later effectuated a traffic stop of Mr. Perry based on the
knowledge that he was driving on a suspended license, and the
suspicion that he possessed a handgun. (Id.)
Approaching the vehicle, the detectives identified themselves
as law enforcement, instructed Mr. Perry to get out of the
vehicle, and performed a pat down. (Id.) The
detectives read Mr. Perry his Miranda rights,
explained that he was stopped due to his suspended license
and informed him that he was a suspect in a burglary
detectives then asked Mr. Perry what he had placed in the
rear of his vehicle, to which he responded that "the
only thing in that car is a bag of dope in the front."
(Id.) Detective McMorrow understood "dope"
to refer to heroin and asked if he could enter the vehicle to
retrieve the substance. (Id.) Mr. Perry first
consented to a search of the vehicle, but then refused to
sign the consent to search form. (Id.) Mr. Perry was
then placed under arrest for possession of narcotics and
taken to the Paramus office of the Bergen County
Prosecutor's Office. (Id.)
the arrest, a warrant was obtained to search Mr. Perry's
vehicle. (DE 7-3 & 7-4, Exs. B, C). The search of Mr.
Perry's vehicle revealed, inter alia, substances
suspected to be marijuana and heroin and a loaded handgun
inside a backpack in the rear of the vehicle. (DE 7-6, Ex. E,
February 2009, Mr. Perry was charged in a one-count
indictment of felony possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). United States v. Perry,
Crim. No. 09-80, DE 1. On May 25, 2010, Mr. Perry pled guilty
pursuant to a plea agreement. Crim. No. 09-80, DE 19. On
November 23, 2010, Judge Dennis M. Cavanaugh sentenced Mr.
Perry to a ninety-month term of imprisonment. Crim. No.
09-80, DE 24.
Perry timely filed an appeal of his sentence, arguing that
Judge Cavanaugh abused his discretion in granting the
Government's request for a significant upward departure
based on Mr. Perry's criminal history. Crim. No. 09-80,
DE 25. On February 1, 2012, the Third Circuit affirmed the
judgment of the District Court. Perry, 460 Fed.Appx.
The § 2255 Motion
January 6, 2016, Mr. Perry, acting pro se, filed a §
2255 motion to vacate, set aside, or correct his sentence
(the "petition"). (DE 1.) Judge Cavanaugh having
retired, the matter was assigned to me. Mr. Perry contends
that his counsel provided ineffective assistance by not
filing a motion to suppress the evidence seized from his car.
(Id., at 5.) The handgun found in his vehicle, he
says, was "fruit of the poisonous tree" because
there was no probable cause to arrest him. (Id.) Mr.
Perry acknowledges that the petition was filed more than one
year after his judgment of conviction became final but
asserts that the one-year deadline to file his motion,
see 28 U.S.C. § 2255(f)(1), should be relaxed
because he was not timely informed of the Third Circuit's
decision affirming his conviction on direct appeal (a key
event in starting the running of the one-year limitations
period). (DE 1-1, ¶¶ 9-10.)
opposition to the petition, the United States argues that Mr.
Perry's motion is barred by the limitations period for
§ 2255 motions and that he has failed to demonstrate any
reason why that deadline should be equitably tolled. (DE 7,
at 6-9.) Even if his motion were to be deemed timely, the
United States argues, he has failed to show that
counsel's performance was deficient or that Mr. Perry
suffered any prejudice as a result. (Id. at 10-15.)
Specifically, the government contends that there was no legal
or factual basis on which to argue that the evidence should
be suppressed. (Id. at 13-14.) Relatedly, there was
no prejudice because a motion, if it had been filed, surely
would have been denied on the merits. (Id. at 15.)
addition to the § 2255 petition, Mr. Perry has also
filed a motion to appoint pro bono counsel (DE 6), and a
motion to conduct an evidentiary hearing, (DE 8). In his
motion for an evidentiary hearing, Mr. Perry responds to
Respondent's assertion that the petition is untimely. (DE
8-1, ¶¶ 2-5.) Mr. Perry argues that the Clerk of
the Third Circuit's failure to timely alert him of the
affirmance of his conviction is an extraordinary circumstance
that warrants equitable tolling of the time limitation for
the filing of a § 2255 motion. (Id; DE 12, at
Perry further argues that an evidentiary hearing should be
conducted because his petition presents a mixed question of
fact and law. (DE 8-1, ¶¶ 7-8.) In that motion, Mr.
Perry asserts a supplemental ground for relief: from the
inception of the traffic stop, he says, the officers
brandished their weapons, placing him under a de
facto arrest. (DE 12, at 3-4). Respondent replies that
this additional claim is both untimely and procedurally
improper because it was not raised in the initial petition.
(DE 11, at 6.) Respondent asserts that Mr. Perry is not