United States District Court, D. New Jersey
ALAN D. GARRETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.
Alan
D. Garret, Petitioner pro se
Sara
Aliya Aliabadi, Assistant United States Attorney OFFICE OF
THE U.S. ATTORNEY FOR THE DISTRICT OF NEW JERSEY Attorney for
Respondent
OPINION
JEROME
B. SIMANDLE U.S. DISTRICT JUDGE
I.
INTRODUCTION
Petitioner
Alan D. Garrett (“Garrett”) pled guilty to a
one-count Indictment for being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g) on October 4,
2011. On January 26, 2012, the undersigned sentenced him to
77 months imprisonment, to be followed by 3 years of
supervised release. Shortly after he completed his initial
term of imprisonment, Garrett violated the terms of his
supervised release and was sentenced for that violation on
December 12, 2016.[1] Garrett now seeks to vacate, set aside, or
correct the sentence for violating supervised release imposed
on December 12, 2016, pursuant to 28 U.S.C. § 2255.
[Garrett v. United States, Civ. No. 17-3254 (D.N.J.)
at Docket Item 1 (the “Motion”).] Through various
letters and a so-called “Amended Petition” [id.
at Docket Item 34], Garrett also seeks to vacate, set aside,
or correct the sentence for his initial conviction imposed on
January 26, 2012. For the reasons explained below, the Court
will deny Garrett's initial Motion challenging his 2016
sentence for violation of supervised release, while
Garrett's “Amended Petition” and related
filings challenging his 2012 conviction and sentence will be
dismissed as an unauthorized second or successive petition
under Section 2255(h).
II.
FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND
On
October 4, 2011, Garrett pled guilty to a single count
Indictment for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). [United States v.
Garrett, Crim. No. 11-242 (D.N.J.) at Docket
Items 25 & 27.] The undersigned sentenced Garrett at the
bottom of the advisory guidelines range to 77 months
imprisonment, to be followed by 3 years of supervised
release, and entered the final Judgment of conviction on
January 26, 2012 (“the January 26, 2012
Judgment”). [Id. at Docket Items 28 & 29.]
Mr. Michael N. Huff, Esq. subsequently filed a notice of
appeal on behalf of Garrett, United States v. Garrett,
App. No. 12-1338 (3d Cir.), which the Third Circuit
denied, United States v. Garrett, 507 Fed.Appx. 139 (3d
Cir. 2012), affirming the January 26, 2012 Judgment.
On
January 2, 2013, Garrett timely filed a petition under 28
U.S.C. § 2255 challenging the January 26, 2012 Judgment
on the basis that his 2012 sentence was invalid because,
inter alia, the Court lacked jurisdiction, he was actually
innocent, his counsel was ineffective, essential elements of
the offense were missing, unlawfully obtained evidence was
used, there were Speedy Trial Act violations, and he was
entitled to a downward departure. [United States v.
Garrett, Civ. No. 13-27 (D.N.J.) at Docket Item 1.] The
undersigned denied this § 2255 petition because Garrett
had waived his right to petition for § 2255 relief in
his plea agreement and, in any event, none of his arguments
had merit. Garrett v. United States, 2014 WL 1334213
(D.N.J. Apr. 2, 2014).
On May
9, 2016, Garrett began serving his term of supervised
release. [Garrett, Crim. No. 11-242 (D.N.J.) at
Docket Item 40.] A little more than one month later, Garrett
was charged in state court with aggravated assault,
possession of a weapon for unlawful purposes, and possession
of a weapon by a convicted felon. [Id.]
Subsequently, those charges were dropped in exchange for
Garrett pleading guilty to hindering apprehension.
[Id.] The U.S. Probation Office petitioned for a
violation of his supervised release because Garrett had
“commit[ted] another federal, state, or local
crime” while under supervision. [Id.] On
November 22, 2016, Garrett's probation officer
subsequently amended the petition, further clarifying the
charge in Violation No. 1. [Id. at Docket Item 47.]
A second amended petition was endorsed and filed November 23,
2016 [Docket Item 50], adding Violation No. 2, charging
Garrett with violating supervised release by possession of a
firearm in connection with the events of Violation No. 1.
Garrett,
represented by counsel, pled not guilty to the second amended
petition, and the Court convened the final hearing on
December 8, 2016. [Docket Item 53.] The Government,
represented by AUSA Aliabadi, dismissed Violation No. 2 and
proceeded to offer evidence on Violation No. 1. (Tr. 12/8/16
[Docket Item 58] at 2-3.) The evidence showed that Garrett
was convicted in New Jersey Superior Court of hindering his
detention, apprehension, or investigation, in violation of
N.J.S.A. § 2C:20-3b(1), on November 16, 2016, arising
out of the charged incident on June 6, 2016, while under the
supervision of this Court. Mr. Garrett spoke at the hearing,
arguing that the Probation Office abused its discretion in
charging what he considered a “technical
violation” and that the condition of supervision (that
“you shall not commit another federal, state, or local
crime”) was impermissibly vague. The Court addressed
and rejected these concerns, and found that the Government
proved Garrett's guilt of Violation No. 1 of the second
amended petition, in an oral opinion. (Tr. 12/8/16 at 16:12
to 20:18.) The undersigned then sentenced Garrett to a term
of imprisonment of 12 months and 1 day, to be followed by a
term of 23 months of supervised release, and entered Judgment
against Garrett for violating his supervised release on
December 12, 2016 (“the VOSR
Judgment”).[2] [Id. at Docket Item 54.]
Garrett
timely filed a notice of appeal of the VOSR Judgment.
[Id. at Docket Item 55.] In that appeal, Garrett
argued to the Third Circuit, inter alia, that: (1) under New
Jersey law, hindering apprehension is a disorderly persons
offense and not a crime; (2) the terms of Garrett's
supervised release were vague; (3) the probation officer
abused her discretion because Garrett did not intentionally
breach the officer's trust and that Garrett
“act[ed] with proper care and caution;” and (4)
that the resulting one-year-and-one-day sentence imposed by
the District Court was unreasonable. [United States v.
Garrett, App. No. 16-4320 (3d Cir.), Documents filed by
Garrett dated May 5, 2017 and May 22, 2017.] On June 19,
2018, the Third Circuit addressed each of Garrett's
arguments, denied his appeal on the merits, and affirmed the
VOSR Judgment that Garrett now challenges. United States
v. Garrett, 737 Fed.Appx. 643');">737 Fed.Appx. 643 (3d Cir. 2018).
On May
8, 2017, Garrett filed the present Motion pursuant to 28
U.S.C. § 2255. [Garrett, Civ. No. 17-3254 (D.N.J.) at
Docket Item 1.] This § 2255 motion challenges his
conviction and confinement for violation of supervised
release imposed on December 12, 2016 (i.e., the VOSR
Judgment), arguing that the Court failed to grant a downward
departure for time served from June 23, 2016 to November 16,
2016 under U.S.S.G. § 5K2.23. [Id. at 3-4.]
Garrett also objected to the condition imposed upon his
future supervised release requiring drug and alcohol testing.
[Id. at 4.]
On
November 21, 2017, the Court alerted Garrett of his rights
under United States v. Miller, 197 F.3d 644 (3d Cir.
1999), notified Garrett that he may have his pleading ruled
upon as filed or “withdraw his pleading and file an all
inclusive Section 2255 Petition including any and all
potential claims, subject to the one (1) year period
described by the Antiterrorism Effective Death Penalty Act
[AEDPA] ¶ 28 U.S.C. § 2255, ” and instructed
Garret that he had “forty-five (45)
days from today's date within which to advise the Court
as to your decision. If you fail to notify the Court, your
pleading and motion will be ruled upon as filed.”
[Garrett, Civ. No. 17-3254 (D.N.J.) at Docket Item 9]
(emphasis in original). The deadline for Miller amendments
thus expired on January 5, 2018. Garrett subsequently filed
several letters on the docket [see, e.g., Id. at
Docket Items 11, 16, 17, 20, 21 & 31], challenging the
validity of the initial January 26, 2012 Judgment (as opposed
to the VOSR Judgment at issue in the Motion), which the Court
construes as support for a separate Section 2255 challenge,
as discussed below.
On July
20, 2018, the Court ordered the Government to file an Answer
within 45 days “which responds to the allegations of
the Motion by each paragraph and subparagraph” and
“accompanied by certified copies of all indictments
and/or charges, transcripts, trial briefs, appendices,
...