United States District Court, D. New Jersey
Susan D. Wigenton, United States District Judge
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).
Because Petitioner did not use the required form, this Court
administratively terminated this matter on January 30, 2019.
(ECF No. 3).
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).
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.
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).
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.
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 ...