United States District Court, D. New Jersey
ANTHONY L. LIVINGSTON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
B. BRENNAN, ESQ. LAW OFFICES OF JOHN B. BRENNAN, Attorney for
V. CARRIG, ESQ. GLENN J. MORAMARCO, ESQ. Attorneys for
RENÉE MARIE BUMB United States District Judge
L. Livingston (“Petitioner”) moves to vacate,
correct, or set aside his federal sentence pursuant to 28
U.S.C. § 2255. (Petition [Docket Item 1 ]; United
States v. Livingston, No. 01-cr-0465-1 (D.N.J. February
1, 2002).) Respondent United States of America
(“Respondent”) opposes the motion. [Docket Item
7.] Petitioner filed a traverse in response to
Respondent's brief. [Docket Item 9.] For the reasons
stated herein, the Court will dismiss the motion as
time-barred, and no certificate of appealability will issue.
13, 2001, Petitioner appeared before the late Honorable
Jerome B. Simandle, D.N.J., with counsel and pled guilty to a
criminal information containing eight counts of bank robbery,
in violation of 18 U.S.C. § 2113(a), (Information
[Docket Item 19] and Plea Agreement [Docket Item 23] in Crim.
No. 01-0465-1), concerning a series of robberies which took
place in late 2000 and early 2001.
parties next appeared before Judge Simandle for sentencing on
February 1, 2002. At that time, the Court granted a two-level
upward departure, raising Petitioner's total offense
level to level 31, and imposed a sentence of 220 months on
each of the eight counts, to be served concurrently.
United States v. Livingston, No. 01-cr-0465-1
(D.N.J. February 1, 2002) . Petitioner appealed his sentence,
in particular the two-level upward departure, to the Court of
Appeals for the Third Circuit. United States v.
Livingston, No. 02-1454 (3d Cir. filed February 8, 2002)
. The Court of Appeals affirmed the sentence imposed by Judge
Simandle on April 28, 2003. 63 Fed.Appx. 617 (3d Cir. 2003).
filed three separate motions to correct, vacate, or set aside
his sentence on February 7, 2002 (Civ. No. 02-605), on August
8, 2003 (Civ. No. 03-3746), and on September 9, 2003 (Civ.
No. 03-4226), which were all consolidated under the earliest
filed case: Civ. No. 02-605. Petitioner was further advised
of his Miller rights on September 26, 2003. (Order
[Docket Item 4] in Civ. No. 02-605.) The Court denied
Petitioner's three consolidated petitions on February 26,
2004. (Order and Opinion [Docket Items 7 and 8] in Civ. No.
02-605.) Petitioner then sought reconsideration of that
decision, which Judge Simandle denied on March 30, 2004.
(Order [Docket Item 10] in Civ. No. 02-605.)
August 9, 2004, the Third Circuit denied Petitioner's
request to file a new petition under § 2255. (Order
[Docket Item 12] in Civ. No. 02-605.) Nevertheless,
Petitioner filed a fourth petition under § 2255 on
September 16, 2004. (Motion [Docket Item 40] in Crim. No.
01-465; see also Order [Docket Item 13] in Civ. No.
02-605.) Judge Simandle dismissed this fourth petition on
April 26, 2005, due to Petitioner's failure to receive
permission to file such from the Third Circuit. (Order
[Docket Item 13] in Civ. No. 02-605.)
filed the instant motion to correct, vacate, or set aside his
sentence on June 20, 2016. [Docket Item 1.] Respondent
answered on January 16, 2018. [Docket Item 7.] Petitioner
filed a traverse on March 9, 2018. [Docket Item 9.]
motion, Petitioner argues his sentence violates the
Constitution because the Supreme Court's ruling in
Johnson v. United States, 135 S.Ct. 2551 (2015),
found the residual clause in the Armed Career Criminal Act
(“ACCA”) to be constitutionally void for
vagueness. [Docket Item 1.] Petitioner further argues that
his sentence was impacted by his designation as a
“career offender” under the mandatory Sentencing
Guidelines, which contained a clause identical to that found
unconstitutional in Johnson. [Id.]
argues the motion should be denied because the motion is
time-barred under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), because,
alternatively, the motion is premature as the Supreme Court
has not extended its reasoning in Johnson to any
other context, because Petitioner was not granted leave by
the Third Circuit to file a second or successive petition
under § 2255 with regard to claims that he was
improperly sentenced as a career offender under the
enumerated offenses, but only with regards to a Johnson
claim, and because the motion is procedurally defaulted.
[Docket Item 7.] Respondent's brief further argues that