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Perry v. United States

United States District Court, D. New Jersey

November 28, 2018

GREGORY PERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The 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.

         II. BACKGROUND

         A. The Underlying Criminal Proceeding

         The 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 Cir. 2012).

         More 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.)[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 investigation. (Id.)

         The 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.)

         Following 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, at 2.)

         In 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.

         Mr. 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. 149.

         B. The § 2255 Motion

         On 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.)

         In 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.)

         In 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 2-3.)

         Mr. 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 ...


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