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Lindsay v. United States

United States District Court, D. New Jersey

September 3, 2019



          Hon. Susan D. Wigenton, United States District Judge


         1. On December 11, 2018, Petitioner, Anthony Lindsay, filed his initial motion to vacate sentence in this matter. (See Document 2 attached to ECF No. 1 at 2).

         2. Because Petitioner did not use the required form, this Court administratively terminated this matter on January 30, 2019. (ECF No. 3).

         3. Over five months later, at the request of Petitioner's former defense counsel, this Court granted Petitioner a final thirty-day extension of time within which to refile his motion in accordance with the administrative termination order. (ECF No. 5). Petitioner thereafter filed his amended motion to vacate sentence on or about July 19, 2019. (ECF No. 6 at 13).

         4. Following the filing of the amended complaint, this Court screened Petitioner's complaint pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings and entered an order directing Petitioner to show cause why his petition should not be dismissed as time barred. (ECF No. 7). This Court explained as follows:

As Petitioner appeared to acknowledge in his petition, his § 2255 is almost certainly time barred. Motions to vacate sentence are subject to a one year statute of limitations which runs from the latest of several possible dates: the date on which the petitioner's conviction becomes final, the date on which an impediment to making his motion is removed, the date on which the Supreme Court first recognizes the claims raised where a claim is based on a newly recognized right made retroactive to cases on collateral review, or the date on which the facts supporting the claim first could have been discovered through due diligence. 28 U.S.C. § 2255(f)(1)-(4). Because Petitioner's claims are not based on a newly recognized right, nor does Petitioner present any evidence that the facts supporting his claim were not discoverable or that any impediment prevented him from raising his claims, Petitioner's statute of limitation runs from the date on which his conviction became final. Id. Where a petitioner files a direct appeal, but does not file a petition for certiorari, that petitioner's conviction becomes final ninety days after the order of the Court of Appeals dismissing his appeal, when the time for the filing of a petition for certiorari has run. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999).
In his underlying criminal matter, Petitioner pled guilty in February 2010 and was ultimately sentenced on April 7, 2011. (ECF No. 1 at 1; Docket No. 07-1032 at ECF Nos. 58, 78). Petitioner appealed, and the Third Circuit affirmed via an order granting the Government's motion for a summary affirmance on June 20, 2012. (Docket No. 07-1032 at ECF No. 95). Because Petitioner did not file a petition for certiorari, his conviction became final ninety days later on September 18, 2012. His one-year limitations period began to run on that date, and, absent some basis for equitable tolling of the limitations period, expired in September 2013, more than five years before Petitioner filed his initial motion in this matter.[1]
Although the § 2255 limitations period is subject to equitable tolling where the facts of the matter so warrant, such tolling “is a remedy which should be invoked ‘only sparingly.'” United States v. Bass, 268 Fed.Appx. 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Tolling therefore only applies where a petitioner shows “(1) that he faced ‘extraordinary circumstances that stood in the way of timely filing,' and (2) that he exercised reasonable diligence.” Johnson, 590 Fed.Appx. at 179 (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Excusable neglect is insufficient to establish a basis for equitable tolling. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
In his motion and amended motion, Petitioner fails to set forth any basis for equitable tolling, and this Court perceives no such basis from the facts presented. Thus, Petitioner's motion to vacate sentence appears to be well and truly time barred, and Petitioner will be required within forty-five days to show cause why his petition should not be dismissed. Should Petitioner fail to meet this deadline or fail to show cause, his petition shall be dismissed with prejudice as time barred.
Finally, the Court notes that, without further explanation, Petitioner asserts in his motion that he should be permitted to evade the time bar because he believes he is raising claims for structural errors and “structural error holds no limitation.” Petitioner provides no caselaw in support of such an assertion, and this Court is aware of none. Indeed, what little caselaw exists suggests that structural errors are not immune to the statute of limitations. See, e.g., Dedona v. United States, No. 08-2046, 2009 WL 2778386, at *4-5 (D.N.J. Aug. 31, 2009) (rejecting argument that structural errors could proceed regardless of timeliness and finding motion alleging structural errors time barred); see also Montes v. Nash, 179 Fed.Appx. 824, 825 (3d Cir. 2006) (inability to raise a structural error claim which is procedurally barred under § 2255 insufficient to permit a petitioner to evade the second or successive motion bar). That Petitioner believes the errors he alleges are structural in nature is immaterial - that distinction has no bearing on whether Petitioner had ample opportunity to file a timely motion to vacate sentence - which it fully appears he had - and whether his current motion should be dismissed as time barred. Petitioner's motion appears to be well and truly time barred by more than five years, and absent a sufficient showing of cause, will be dismissed.

(ECF No. 7 at 1-4).

         5. On August 28, 2019, Petitioner filed a response to the order to show cause. (ECF No. 8). In his response, Petitioner argues that, because his claims are constitutional in nature, the burden should be placed on the Government to prove they were harmless beyond a reasonable doubt regardless of any time bar issues, relying on Chapman v. California, 386 U.S. 18 (1967). Petitioner also argues that § 2255 motions should not be subject to a time bar, relying on pre-AEDPA cases. Finally, Petitioner suggests, if not argues, that the Court's screening order is indicative of bias and that it should be the Government, and not the Court, who presents any time bar issue.

         6. Turning first to Petitioner's contention that the Court's screening is somehow indicative of bias or the Court acting on the Government's behalf, Petitioner is mistaken. Although Petitioner argues that the Government, and not a judge, should identify the deficiencies in his motion to vacate, he completely ignores the fact that this Court is required by Rule 4 of the Rules Governing Section 2255 Proceedings to screen all motions to vacate sentence. Indeed, the Rule specifically states that the “judge who receives the motion must promptly examine it [and, i]f it plainly appears . . . that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b) (emphasis added). Pursuant to this Rule, this Court must “dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). The time bar issue this Court raised in its screening order was patently obvious from the face of Petitioner's motion and the records of his underlying criminal proceedings. Thus, under Rule 4(b), this Court was required to screen Petitioner's motion to vacate sentence and dismiss it as the time bar issue was apparent from the face of Petitioner's motion. That screening, and the ultimate dismissal of his motion to vacate as time barred in no way evinces prejudice or bias, nor the appearance of such, and any request by Petitioner that this Court recuse or otherwise decline to dismiss his clearly time barred motion to vacate sentence is denied. See Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167-68 (3d Cir., 2004) (recusal only required where a judge's impartiality may reasonably questioned, and this ...

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