ASHMAN v. UNITED STATES OF AMERICA

Filing 7

MEMORANDUM OPINION AND ORDER, the Clerk shall administratively terminate this matter by making a new and separate entry on the docket reading, "CIVIL CASE TERMINATED"; and it is further ORDERED that Petitioner may have this matter reopened in the event, within thirty days from the date of entry if this Memorandum Opinion and Order, he files and serves upon Respondent a written statement showing cause as to why this matter should not be conclusively closed on the grounds that his challenges have been rendered moot by his release/removal, etc. Signed by Judge Renee Marie Bumb on 2/27/14. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
DWIGHT ASHMAN,
:
: Civil Action No. 13-1365 (RMB)
Petitioner,
:
:
v.
: MEMORANDUM OPINION AND ORDER
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_______________________________________
:

This matter comes before the Court upon the Court’s sua
sponte review of Petitioner’s online records maintained by the
Bureau of Prisons (“BOP”).
On August 1, 1996, Petitioner, an alien, was convicted of an
aggravated felony.

That conviction caused his removal from the

United States on June 20, 1997.

Nothing in the terms of his

removal indicated the Government’s consent to Petitioner’s
reentry to the United States without prior authorization for such
reentry.

However, on April 17, 2009, Petitioner was located in

the United States after reentering the United States illegally.
Therefore, on April 23, 2010, Petitioner was charged with
illegally reentering the United States after his removal
subsequent to his conviction for an aggravated felony.

About

five months later he pled guilty to that charge without the
benefit of a plea agreement.

On November 1, 2011, this Court

sentenced Petitioner to twenty-four months of imprisonment.

His

federal term was directed to run concurrently to the state term

imposed by the state court on the basis of Petitioner’s other
offense committed after his illegal reentry.

On August 8, 2012,

Petitioner filed with the Clerk an application styled as a motion
seeking relief under Civil Rule 60(b) and Criminal Rule 52(b).
In that application, he asserted that his sentence was rendered
erroneously, that he received ineffective assistance of counsel
and that his prosecutor committed misconduct.

Respondent filed

its opposition to Petitioner’s application arguing that no relief
was warranted, and that Petitioner’s challenges were, de facto,
of a § 2255 nature.1

Petitioner traversed raising the arguments

substantively indistinguishable from those initially raised.

He

also requested re-characterization of his application into a §
2255 motion.

Correspondingly, the matter at bar was commenced.

1

Respondent’s swift opposition to Petitioner’s application,
being joined with Respondent’s position that Petitioner’s claims
were essentially of § 2255 nature, inadvertently created “the
cart before the horse” effect since, in habeas proceedings: (a)
there is no compulsory obligation to respond; (b) unless the
motion appears barred on its face procedurally/jurisdictionally,
the district court is first obligated to inform the litigant of
his rights under United States v. Miller, 197 F.3d 644 (3d Cir.
1999), and allow him an opportunity to withdraw his original
motion and to file an all-inclusive application in its place; and
only then (c) the court directs the respondent’s answer to that
all-inclusive application (or to the original motion if no allinclusive application is filed) and the litigant is allowed to
traverse. Here, Respondent’s oppodiyion caused this Court’s
issuance of the Miller notice after the answer, hence
necessitating Respondent’s “re-answer” after Petitioner filed his
statement requesting re-characterization of his initial
application into a § 2255 motion. However, in light of the
latest developments, as detailed infra, this Court finds it
warranted to dispense with Respondent’s re-answer.
2

The Court’s review of Petitioner’s online information
indicated that his sentence under attack had expired, and he was
released (and, presumably, removed from the United States anew)
on July 29, 2013.

See http://www.bop.gov/inmateloc/.

Therefore,

the substantive challenges raised in his § 2255 motion yielded to
the threshold inquiry as to whether his motion became moot in its
entirety as a result of his release/removal.
At this juncture, it appears that Petitioner’s claims have
been rendered moot, since: (a) his challenges are attacking
solely his sentence, not his conviction; and (b) nothing in the
record suggests that Petitioner is threatened with or suffered an
injury traceable to this Court’s decision that could be remedied
by a favorable decision at this juncture.

See, e.g., Okereke v.

United States, 307 F.3d 117, 121 (3d Cir. 2002) (noting that the
petitioner “must demonstrate that he has suffered or is
threatened with an actual injury traceable to the District
Court’s decision that can be redressed by a favorable decision
here”) (citation omitted); see also Steel Co. v. Citizens for
Better Environment, 523 U.S. 83, 102-03 (1998) (“[T]he point has
always been the same: whether a plaintiff ‘personally would
benefit in a tangible way from the court's intervention’”)
(citation omitted); accord Sprint Communs. Co., L.P. v. APCC
Servs., 554 U.S. 269, 301 (2008) (Roberts, J., dissenting) (“The
absence of any right to the substantive recovery means that

3

respondents cannot benefit from the judgment they seek . . . .
‘When you got nothing, you got nothing to lose’”) (quoting, with
correction of grammar, Bob Dylan, Like A Rolling Stone, in On
Highway 61, Revisited (Columbia Records 1965)).

Indeed, it

appears that, even if this Court were to modify Petitioner’s
sentence as Petitioner requested, he would not receive a tangible
benefit of such decision, e.g., he would not be allowed reentry
into the United States, etc.

Cf. Okereke, 307 F.3d at 119, 121

(holding that, where the court was merely left with his various
arguments in favor of resentencing, but the petitioner had
already served his prison term and been removed from the United
States, that release and removal rendered all issues regarding
sentencing moot).

Therefore, a dismissal on the grounds of

mootness appears the most appropriate at this juncture.
However, being not apprised of all circumstances of
Petitioner’s life, this Court cannot rule out the possibility
that, if Petitioner is provided with an notice an an opportunity
to respond, he might establish a tangible benefit of this Court’s
resolving this matter on the merits.

Therefore, out of an

abundance of caution, the Court will direct Petitioner to show
cause as to why this matter should not be dismissed as moot. In
the meantime, the Court will retain temporary jurisdiction over
this matter while directing the Clerk to administratively
terminate it for the purposes of docket management.

4

See Papotto

v. Hartford Life & Accident Ins. Co., 731 F.3d 265 (3d Cir. 2013)
(“administrative closings . . . are a practical tool used by
courts to prune overgrown dockets and are particularly useful in
circumstances in which a case, though not dead, is likely to
remain moribund”).
IT IS, therefore, on this 27th day of February 2014,
ORDERED that the Clerk shall administratively terminate this
matter by making a new and separate entry on the docket reading,
“CIVIL CASE TERMINATED”; and it is further
ORDERED that Petitioner may have this matter reopened in the
event, within thirty days from the date of entry if this
Memorandum Opinion and Order, he files and serves upon Respondent
a written statement showing cause as to why this matter should
not be conclusively closed on the grounds that his challenges
have been rendered moot by his release/removal; and it is further
ORDERED that, in the event Petitioner timely files and
serves such written statement, Respondent shall file and serve
upon Petitioner Respondent’s position statement. Such filing and
service shall be executed within thirty days from the date of
service of Petitioner’s written statement; and it is further
ORDERED that the Court retains jurisdiction over this matter
for the period of ninety days; and it is finally

5

ORDERED that the Clerk serve this Memorandum Opinion and
Order upon Petitioner by regular U.S. mail and upon Respondent by
means of electronic delivery.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

6