Peter Chun Nam Yeung v. Linda Sanders
MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 3/26/12. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PETER CHUN NAM YEUNG,
HON. JEROME B. SIMANDLE
Civil No. 11-5966 (JBS/JS)
Mr. Peter Chun Nam Yeung
3600 Guard Road
Lompoc, CA 93436-2705
Petitioner Pro Se
Steven J. D'Aguanno, Assistant United States Attorney
Office of the U.S. Attorney
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for the Respondent Linda Sanders
SIMANDLE, Chief Judge:
This matter is before the Court upon Petitioner Peter
Chun Nam Yeung's motion challenging the recharacterization of
his petition as a § 2255 motion [Docket Item 16].
finds as follows:
On March 23, 2011, Petitioner Peter Chun Yeung
("Petitioner"), a prisoner confined at the Federal
Correctional Institution at Lompoc, California, sought a writ
of habeas corpus pursuant to 28 U.S.C. § 2241, in the Central
District of California.
Petitioner was convicted before the
undersigned in the District of New Jersey of a conspiracy to
smuggle cigarettes into the United States, traffic in goods
bearing counterfeit marks, and traffic in contraband
cigarettes in violation of 18 U.S.C. §§ 371, 545, 2320(a),
and 2342(a); and (2) trafficking in goods bearing counterfeit
marks, in violation of 18 U.S.C. § 2320(a).
The Petitioner appealed his conviction and sentence
and on March 29, 2010, the Third Circuit affirmed
The Petitioner then filed the
instant action on March 23, 2011.
[Docket Item 12.]
petition, the Petitioner asserted that he is actually
innocent; the sentencing court failed to make necessary
findings of fact under sentencing guidelines; the sentence
imposed violates the Eighth Amendment; and the process of
determining relevant conduct in federal sentencing is
fundamentally unfair to defendants.
In an order dated October 12, 2011, the Central
District of California recharacterized Petitioner's motion as
a § 2255 motion.
That Court reasoned that each of the
Petitioner's claims amounts to an attack on the validity of
either his conviction or sentence, but not the execution of
Therefore, the Court held that the
Petitioner's motion should have been brought under § 2255.
Consequently, the Court advised the Petitioner of the
potential adverse consequences of recharacterization and the
Petitioner declined to elect either of the two following
options: (1) consenting to the recharacterization; or (2)
withdrawing his motion.
Since the Petitioner was
unresponsive, the Court subsequently recharacterized his
petition and transferred the case from the Central District
of California to the District of New Jersey, as the District
of New Jersey was the sentencing court.
[Docket Item 12.]
Approximately three months later, the Petitioner
filed the instant motion to challenge the recharacterization
of his original 2241 motion, and he seeks to transfer the
matter back to the Central District of California.
The government filed opposition.
The Petitioner's motion is in essence a motion for
reconsideration of the Court's October 12, 2011 order.
Therefore, Local Civil Rule 7.1(i) governs the court's
Local Civil Rule 7.1(i) provides that a motion for
reconsideration "shall be served and filed within 14 days after
the entry of the order or judgment" unless otherwise provided
by statute or rule. L. Civ. R. 7.1(i).
Rule 7.1(i) requires
the moving party to set forth the factual matters or
controlling legal authorities it believes the Court overlooked
its initial decision.
L. Civ. R. 7.1(i).
prevail on a motion for reconsideration, the movant must show:
(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not
available when the court . . . [rendered the
judgment in question]; or (3) the need to correct a
clear error of law or fact or to prevent manifest
Max’s Seafood Café ex rel. Lou-Ann, Inc., v. Quinteros, 176
F.3d 669, 677 (3d Cir. 1999); see also Tehan v. Disability
Management Services, Inc., 111 F. Supp. 2d 542, 549 (D.N.J.
To prevail under the third prong, the
movant must show
that “dispositive factual matters or controlling decisions of
law were brought to the court’s attention but not considered.”
P. Schoenfeld Asset Management LLC v. Cendant Corp., 161 F.
Supp. 2d 349, 353 (D.N.J. 2001) (internal
The standard of review involved in a
motion for reconsideration is high and relief is to be granted
United States v. Jones, 158 F.R.D. 309, 314 (D.N.J.
1994); Maldonado v. Lucca, 636 F. Supp. 621, 629 (D.N.J. 1986).
"A party seeking reconsideration must show more than a
disagreement with the Court's decision, and recapitulation of
the cases and arguments considered by the court before
rendering its original decision fails to carry the moving
party's burden." G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J.
First, the Petitioner's motion is untimely.
Petitioner did not file his motion challenging the
recharacterization of his petition until approximately three
months after the Court's October 12, 2011 Order.
This is well
beyond the prescribed fourteen (14) day time period.
moving papers, the Petitioner sets forth no reasons to explain
his delay or show good cause why his motion should be
considered despite his extremely belated filing.
In addition, the Petitioner's motion lacks merit.
Petitioner does not argue in his motion for reconsideration
that there has been an intervening change in the law or that
there is new evidence available which was not available when
the court recharacterized his petition as a § 2255 motion.
has the Petitioner shown that “dispositive factual matters or
controlling decisions of law were brought to the court’s
attention but not considered.”
P. Schoenfeld Asset Management
LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353 (D.N.J. 2001).
Instead, the Petitioner merely expresses disagreement with the
This is not a sufficient basis for
G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J.
The petition before the Court clearly attacks the
validity of his conviction and the imposition of his federal
sentence on multiple grounds, for which § 2255 and not § 2241
is the sole procedural remedy.
Nor has Petitioner demonstrated
that § 2255 is "inadequate or ineffective" for challenging the
alleged defects in his sentence.
These reasons were clearly
set forth at length in Judge Klausner's Memorandum Opinion in
the Central District of California [Docket Item 12].
Circuit precedent is in accord.
Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002); In re Dorsainvil, 119 F.3d 245,
252 (3d Cir. 1997).
For the reasons set forth above, the Petitioner's
motion challenging the recharacterization of his petition will
The accompanying Order will be entered.
March 26, 2012
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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