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Livingston v. United States

United States District Court, D. New Jersey

October 25, 2019

ANTHONY L. LIVINGSTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          JOHN B. BRENNAN, ESQ. LAW OFFICES OF JOHN B. BRENNAN, Attorney for Petitioner

          DIANA V. CARRIG, ESQ. GLENN J. MORAMARCO, ESQ. Attorneys for Respondent

          OPINION

          RENÉE MARIE BUMB United States District Judge

         I. INTRODUCTION

         Anthony 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.

         II. BACKGROUND

         On July 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.

         The 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).

         Petitioner 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.)

         On 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.)

         Petitioner 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.]

         III. ANALYSIS

         In his 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.]

         Respondent 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 ยง 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 ...


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