MCADAMS v. UNITED STATES OF AMERICA

Filing 67

OPINION. Signed by Judge Noel L. Hillman on 8/29/2022. (alb, n.m.)

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 1 of 18 PageID: 431

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOSEPH MCADAMS,

Civ. No. 13-1612

Petitioner,

OPINION

v.
UNITED STATES OF AMERICA,
Respondent.
APPEARANCES:
Joseph McAdams
05831-050
F.C.I. Fort Dix
P.O. Box 2000
Bldg 5841 2nd Fl
Rm 240-3l Nestside
Joint Base MDL, NJ 08640
Petitioner pro se
Philip R. Sellinger, United States Attorney
Samantha C. Fasanello, Assistant United States Attorney
Office of the U.S. Attorney
970 Broad Street
7th Floor
Newark, NJ 07102
Attorneys for Respondent
HILLMAN, District Judge
Petitioner Joseph McAdams filed a motion to correct,
vacate, or set aside his federal sentence under 28 U.S.C. §
2255.

ECF No. 5.

The Honorable Chief Judge Jerome B. Simandle,

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 2 of 18 PageID: 432

D.N.J., denied the motion on April 27, 2015.

ECF No. 33.

Petitioner moved to alter or amend the judgment under Federal
Rule of Civil Procedure 59(e).

ECF No. 35.

denied that motion on January 20, 2016.

Judge Simandle

ECF No. 38.

On July 23, 2018, Petitioner filed the instant motion
asking the Court to appoint pro bono counsel and reopen the case
under Federal Rule of Civil Procedure 60.

ECF No. 39.

The

matter was reassigned to the undersigned following Judge
Simandle’s passing.

ECF No. 41.

The United States filed

opposition to the motion after the Court requested its response.
ECF No. 51.

Petitioner filed a reply.

ECF No. 62.

The matter is now fully briefed and ripe for decision.

For

the reasons expressed herein, the Court will dismiss the motion
for lack of jurisdiction.

No certificate of appealability shall

issue.
I.

BACKGROUND
On September 25, 2009, Petitioner pled guilty to a ten-

count information charging him with bank robbery, 18 U.S.C. §§
2113(a), 2113(d) & 2, (Counts One through Ten), and brandishing
a loaded firearm in one of the bank robberies, 18 U.S.C. §
924(c)(1)(A)(ii) & 2 (Count Eleven).

Information, United States

v. McAdams, No. 09-cr-737 (D.N.J. Sept. 25, 2009) (“Crim. Case”)
(ECF No. 12).

The robberies took place between November 12,

2

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 3 of 18 PageID: 433

2004 and October 9, 2008, and the firearm charge “was predicated
on the October 9, 2008 armed robbery charged in Count Ten of the
Information.”

ECF No. 51 at 2 n.2.

As part of his plea

agreement, Petitioner stipulated to a total Guidelines offense
level of 31 and acknowledged that Count Eleven carried a
mandatory consecutive seven-year term of imprisonment.

Id. at

2.
The Presentence Investigation Report (“PSR”) concluded that
Petitioner qualified as a career offender based on three
predicate offenses: an April 9, 1984 conviction for bank robbery
(sentence of 10 years, execution of sentence suspended, five
years probation); a December 13, 1985 conviction for armed
robbery and unlawful possession of firearms (concurrent
sentences of 15 years and 7 years imprisonment); and an April
29, 1985 conviction for bank robbery (sentence of nine years
imprisonment).

McAdams v. United States, No. 13-1612, 2015 WL

1914631, at *1 (D.N.J. Apr. 27, 2015) (citing U.S.S.G. §
4B1.1.2).
Although not marked as predicate offenses, the PSR also
listed other prior convictions: breaking and entering in
March
1977
(sentence
of
“[i]ndeterminate
term,
suspended; 3 years probation and $500 fine”); simple
assault in August 1978 (fine of $35 plus $25 court
costs); robbery while armed and unlawful use of a
dangerous weapon, among other charges, in January 1979
(sentence
of
“[i]ndeterminate
term
Yardville
[Correctional Institution]”); and armed robbery and
committing a crime while armed on February 2, 1979
3

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 4 of 18 PageID: 434

(sentence of “[i]ndeterminate term at Yardville”).
Id. (alterations in original).
At sentencing on April 15, 2010 the court reduced the 15
criminal history points originally calculated in the PSR to 12,
“subtracting three points for the January 1979 robbery, because
the conviction was not properly corroborated by documentary
evidence.

Twelve points qualified Petitioner for Criminal

History Category V, but the Court found Petitioner was a career
criminal offender, which increased his criminal history category
to Category VI.”

Id. at *2 (internal citations omitted).

“The

Guidelines recommended a sentence of 272 to 319 months for
Offense Level 31 at Criminal History Category VI (including the
84–month mandatory consecutive increase for the § 924(c)
violation).”

Id.

Judge Simandle sentenced Petitioner to 319

months of imprisonment: 235 months for each of the bank robbery
charges, to be served concurrently with each other, and 84
months on the firearm charge, to be served consecutively.
Judgment of Conviction, Crim. Case No. 19.

Petitioner did not

file a direct appeal.
Petitioner filed his original § 2255 motion on March 19,
2013, ECF No. 1, and amended his petition on July 19, 2013, ECF
No. 5.

The amended motion argued that Petitioner’s trial

“counsel was ineffective for two reasons.

4

First, his counsel

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 5 of 18 PageID: 435

failed to convey to him a plea offer with a maximum sentence of
235 months, which he would have accepted, had he known of it.
Second, his counsel was ineffective for failing to object to his
erroneous classification as a career offender.”
WL 1914631, at *2.

McAdams, 2015

The United States opposed Petitioner’s plea

agreement claim but conceded that further inquiry was necessary
to address Petitioner’s criminal history arguments.

ECF No. 13.1

Judge Simandle appointed counsel for Petitioner and conducted an
evidentiary hearing on September 25, 2014.

ECF No. 31.

Petitioner argued “that he should not have been classified
as a career offender because his federal convictions on April 9,
1984, and April 29, 1985 were incorrectly recorded in the PSR as
violent robberies, presumably under 18 U.S.C. § 2113(a).
Rather, he claims that he was convicted of ‘non-violent §
2113(b) robbery’ on both occasions.”

McAdams, 2015 WL 1914631

at *4.
At the hearing, the Government stated that it was no
longer contesting the April 9, 1984 and April 29, 1985
convictions as eligible predicate offenses. Thus, the
parties agree that two of Petitioner’s prior felony
convictions were not eligible to be counted as eligible
convictions for career offender status. Petitioner does
not dispute that his December 13, 1985 conviction may be
considered a predicate offense for career offender
purposes.

The United States affirmatively waived any timeliness objections
to Petitioner’s claims. ECF No. 13 at 3.
1

5

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 6 of 18 PageID: 436

The question before the Court is whether Petitioner was
nonetheless correctly classified as a career offender
because he has another prior felony conviction for a
crime of violence — armed robbery on February 2, 1979 —
that serves as a second prior felony for career offender
status purposes. For that 1979 robbery, Petitioner was
sentenced to an indeterminate term at “Yardville.”
Id. at *5 (internal citations omitted).

Petitioner “argued that

[his] February 2, 1979 felony conviction did not count as a
predicate offense for career offender purposes because [he] did
not serve any part of that sentence within the 15–year time
period for counting a prior offense.”2

Id. at * 6.

The Government argues that the February 1979 conviction
fell within the 15–year time period because Petitioner
was incarcerated on a parole violation on that
conviction in 1991 until May 17, 1993. According to the
PSR, Petitioner was sentenced on July 6, 1979, and was
paroled on June 13, 1980 “with an original maximum date
of July 1, 1984.”
However, Petitioner subsequently
committed new offenses and his maximum date was advanced
to September 26, 1985. The PSR also notes that on March
6, 1985, a detainer was lodged for violation of his
parole on the 1979 offense.
The PSR states that
Petitioner served a sentence in federal prison from
April 29, 1985 to July 22, 1991 and was then turned over
to state custody on the detainer. Petitioner remained
in state custody from 1991 until May 17, 1993, when he
was paroled. The PSR states that Petitioner’s maximum
date on the February 1979 conviction was ultimately
advanced to September 8, 1995.

“[A] prior sentence is counted for computing criminal history
when it is a sentence of imprisonment ‘exceeding one year and one
month, whenever imposed, that resulted in the defendant being
incarcerated during any part of [a] fifteen-year period’ within
the defendant’s commencement of the instant offense.”
McAdams,
2015 WL 1914631 at *6 (quoting U.S.S.G. § 4A1.2(e)(1)) (second
alteration in original).
2

6

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 7 of 18 PageID: 437

Petitioner argues that the sentence he served in state
prison from 1991 to 1993 was not for violation of parole
for his February 1979 conviction. Petitioner notes that
the PSR gives May 17, 1993 as the parole date for three
separate crimes: the February 1979 offense; a January
24, 1980 offense for robbery in Morris County, New
Jersey; and a December 13, 1985 offense for armed robbery
in Middlesex County, New Jersey. Petitioner argues that
because these three offenses have the same parole date,
it is not clear from the face of the PSR whether he was
returned to state custody in 1991 on the 1979 parole
violation, or whether he was in state custody to serve
a sentence for another crime.
Id. at * 7 (internal citations omitted).

Richard Turback, the

Assistant Chief of the Revocation Unit at the New Jersey State
Parole Board, testified on behalf of the United States at the
September 25, 2014 hearing.
on his own behalf.

Id.

ECF No. 34.

Petitioner testified

Judge Simandle denied Petitioner’s §

2255 motion on April 27, 2015.

ECF No. 33.

[T]he Court finds no ambiguity in the PSR regarding why
Petitioner was in state custody during those years. The
PSR notes that although Petitioner was paroled in 1980
for the 1979 conviction, he was charged with a violation
of that parole for committing a new bank robbery on
August 22, 1983.
A detainer was lodged for that
violation on March 6, 1985. (PSR ¶¶ 193, 197.) Shortly
thereafter, Petitioner entered federal custody to serve
a 9–year sentence on a different conviction for bank
robbery.
At the hearing, Petitioner asserted that he
was transferred back to state custody in 1991 to complete
his sentence on the 1985 offense in Middlesex County.
However, the PSR specifically states that in July 1991,
“[f]ollowing the completion of his federal sentence,
[the Petitioner] was transferred to the New Jersey state
prison system to serve a sentence for parole violation.”
(PSR ¶ 211 (emphasis added).)
According to the PSR,
Petitioner was granted parole on the 1979 offense on May
17, 1993.
Thus, the PSR shows that Petitioner was
incarcerated for violation of parole on the 1979 robbery
7

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 8 of 18 PageID: 438

conviction between 1991 and 1993, which is within the
15–year time period under § 4A1.2(e)(1), for nine of the
ten bank robberies herein which extended from November
12, 2004 through October 9, 2008. Aside from pointing
to the unavailability of records related to his 1979
conviction, Petitioner makes no argument why this
information in the PSR is unreliable.
The mere fact
that the PSR lists the same parole date for two other
offenses does not call into question the fact that he
was nonetheless incarcerated on a parole violation from
1991 to 1993 on the 1979 crime.
McAdams, 2015 WL 1914631 at *7 (alterations in original)
(footnote omitted).

Judge Simandle declined to issue a

certificate of appealability.

ECF No. 33.

In lieu of seeking a certificate of appealability from the
Third Circuit, Petitioner filed a Rule 59(e) motion on May 26,
2015 “claiming that ‘new’ evidence, namely, a printout of his
parole records, undisputably shows that he had completed his
sentence on the 1979 conviction by August 1989 at the latest.
Thus, . . . that conviction falls outside the 15-year time
period specified in U.S.S.G. § 4A1.2(e)(1) [and] should not have
been counted as a predicate offense for career offender status.”
McAdams v. United States, No. 09-737-001, 2016 WL 240877, at *2
(D.N.J. Jan. 20, 2016).

See ECF No. 35.

Petitioner also moved

for the appointment of new pro bono counsel, asserting that his
counsel for the evidentiary hearing “failed to adequately
investigate and present document evidence affirming McAdam’s
claim” and did not file a request for a certificate of

8

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 9 of 18 PageID: 439

appealability with the Third Circuit.

ECF No. 36.

Judge Simandle denied both motions on January 20, 2016.
McAdams, 2016 WL 240877; ECF No. 38.

“[A] close inspection of

the printout reveals that the information contained within it is
not in fact new.

Although it is in a different format, the

document contains the exact same incarceration and parole
history for his February 1979 offense that was detailed in a
letter from Amy Emrich at the New Jersey Department of
Corrections, which this Court explicitly considered during
McAdams’s hearing.”

McAdams, 2016 WL 240877, at *3.

“The

information in the printout is consistent with all of the other
evidence that was presented in this case, and a different
outcome is not warranted.”

Id. at *5.

After noting “that there is no Sixth Amendment right to
appointment of counsel in collateral proceedings, and a
petitioner seeking habeas relief has no constitutional right to
effective assistance of counsel[,]” Judge Simandle rejected
Petitioner’s allegations of ineffective assistance.

Id. at *5.

“Based on the present record, the Court can find no fault with
[counsel’s] performance.

There is no indication that counsel’s

decision not to seek appeal was uninformed, and mere
disagreement with legal strategy is not a real allegation of

9

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 10 of 18 PageID: 440

deficiency.”

Id. at *7.3

Once again, Petitioner did not seek

review from the Third Circuit.
On December 19, 2017, Petitioner filed “a motion to
clarify” in the Superior Court of New Jersey, Criminal Division,
Somerset County.

ECF No. 39-1 at 10.

“If Petitioner can

establish that his maximum date on the 1979 Somerset County
conviction concluded prior to 1991, than that conviction would
not qualify as a predicate offense for the career offender
designation and his current federal sentence would be reduced
significantly.”

Id. at 2-3.

Petitioner contends the US District Court erroneously
interpreted documents provided by NJ Department of
corrections and Parole as “suggest[ing] that [he] served
time for ... a parole violation on his Somerset County
conviction when he re-entered state custody in 1991”,
and therefore hereby seeks this Court’s clarification on
his maximum date on the 1979 Somerset County conviction,
which, if as he expects results in a finding that the
maximum date concluded prior to 1991, will allow him to
re-open his federal habeas proceedings and conclusively
established that 1979 Somerset County conviction was not
a proper predicate for the career offender designation
so as to be eligible for a reduction in his current
federal sentence.
Id. at 3-4 (alterations and omission in original).

“Defendant

is thus seeking to vacate the previous ‘indeterminate term at
Yardville’ sentence, which failed to specify a maximum term, and

The Court notes that § 2255 counsel informed Petitioner that he
could petition the Third Circuit for a certificate of appealability
himself. ECF No. 36 at 6.
3

10

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 11 of 18 PageID: 441

seeks resentencing to a term commensurate to the term he
actually served - i.e. five years indeterminate.”

Id. at 11.

The state court considered this a motion to correct an illegal
sentence, appointed counsel to represent Petitioner, and held
oral argument on April 25, 2018.

Id. at 17.

On May 3, 2018,

the state court granted the motion and issued an amended
judgment of conviction stating: “Defendant is sentenced to an
indeterminate term at Yardville with a maximum of 5 years.”

Id.

at 24.
Having succeeded in obtaining an amended judgment of
conviction from the state court, Petitioner filed this motion
asking the Court to appoint him counsel to assist in reopening
the § 2255 proceedings on July 23, 2018.
United States opposes the motion.
II.

ECF No. 39.

The

ECF No. 51.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 60(b), a party may

“seek relief from a final judgment, and request reopening of his
case, under a limited set of circumstances.”
Crosby, 545 U.S. 524, 528 (2005).

Gonzalez v.

“Under Rule 60(b)(1), a party

may seek relief based on ‘mistake, inadvertence, surprise, or
excusable neglect.’

Rules 60(b)(2) through (b)(5) supply other

grounds for reopening a judgment.”
S. Ct. 1856, 1861 (2022).

Kemp v. United States, 142

“Finally, Rule 60(b)(6) provides a

11

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 12 of 18 PageID: 442

catchall for ‘any other reason that justifies relief.’

This

last option is available only when Rules 60(b)(1) through (b)(5)
are inapplicable.”

Id.

“The standard for granting a Rule 60(b)(6) motion is a high
one.

The movant must show ‘extraordinary circumstances’ to

justify reopening a final judgment.”

Michael v. Wetzel, 570 F.

App’x 176, 180 (3d Cir. 2014) (quoting Gonzalez v. Crosby, 545
U.S. 524, 536 (2005)).

“[A] showing of extraordinary

circumstances involves a showing that without relief from the
judgment, ‘an “extreme” and “unexpected” hardship will result.’”
Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d. Cir. 2008)
(quoting Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir.
1977)).
III. DISCUSSION
There is no Sixth Amendment right to counsel in collateral
proceedings.

See Reese v. Fulcomer, 946 F.2d 247, 263 (3d Cir.

1991), superseded on other grounds by statute, 28 U.S.C. § 2254.
However, 18 U.S.C. § 3006A(a)(2)(B) provides that the Court has
discretion to appoint counsel for financially eligible
petitioners where “the court determines that the interests of
justice so require....”

In Reese, the Third Circuit explained

that in determining whether counsel should be appointed, a court
“must first decide if petitioner has presented a nonfrivolous

12

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 13 of 18 PageID: 443

claim and if the appointment of counsel will benefit the
petitioner and the court.

Factors influencing a court's

decision include the complexity of the factual and legal issues
in the case, as well as the pro se petitioner's ability to
investigate facts and present claims.”
64.

Reese, 946 F.2d at 263-

The Court finds that appointing counsel would not be in the

interests of justice because the Court lacks jurisdiction over
Petitioner’s request to reopen his § 2255 proceedings.
“Before a second or successive application permitted by
this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
U.S.C. § 2244(b)(3)(A).

28

This requirement is jurisdictional,

Lesko v. Sec’y Pennsylvania Dep’t of Corr., 34 F.4th 211, 222
(3d Cir. 2022), and “[l]itigants may not circumvent these
requirements by disguising a second or successive motion as
something else, like a motion under Rule 60(b).”

United States

v. Tatar, No. 20-3432, 2022 WL 2763699, at *3 (3d Cir. July 15,
2022).

“Indeed, a ‘Rule 60(b) motion should be treated as a

second or successive § 2255 motion if it challenges the
defendant’s conviction or sentence rather than a procedural
error in the prior § 2255 proceeding.’”

Id. (quoting United

States v. McKye, 947 F.3d 1293, 1295 (10th Cir. 2020)).

13

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 14 of 18 PageID: 444

However, “‘when a Rule 60(b) motion attacks, not the substance
of the federal court’s resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings,’
the motion is not properly construed as advancing a ‘claim’ and
is, therefore, not a second or successive petition.”

Blystone

v. Horn, 664 F.3d 397, 412 (3d Cir. 2011) (quoting Gonzalez v.
Crosby, 54.5 U. S. 524, 532 (2005)).
Petitioner argues his motion is not an unauthorized second
or successive § 2255 motion because “it challenges the manner in
which the earlier habeas judgment was procured and not the
underlying conviction.”

ECF No. 62 at 3.

In
dismissing
his
claim,
the
Court
relied
on
misinformation provided by the government in the form of
misleading and incomplete NJ state records, and
misinterpretations of cryptic entries contained in those
records, which the government claimed showed he was
still on parole for the Somerset conviction until May
1993.
. . .
Based
on
the
incomplete
cryptic
records
and
misinterpretations provided by the government, the Court
concluded that the Somerset sentence fell within the 15
year
time
period
under§
4Al.2(e)
and
denied
Petitioner’s§ 2255 motion and Rule 59(e) reconsideration
motion.
The pleadings filed in the subsequent state court
proceedings, together with the state court findings and
conclusions, now demonstrate that the incomplete records
and misinterpretations provided by the Government in
Petitioner’s § 2255 and 59(e) case were inadequate to
reach the findings made by the Court.

14

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 15 of 18 PageID: 445

ECF No. 39 at 10-11.

He asserts that “[t]hese failures denied

Petitioner’s Due Process right to a full and fair opportunity to
be heard in developing the essential evidence necessary to prove
his claims,” making the judgments void under Federal Rule of
Civil Procedure 60(b)(4).

Id. at 12.

Despite Petitioner’s attempt to frame his arguments as mere
procedural challenges, the present motion is “a clear attempt to
relitigate his conviction, not a procedural challenge to his
previous § 2255 proceeding.”

United States v. Tatar, No. 20-

3432, 2022 WL 2763699, at *3 (3d Cir. July 15, 2022).

There is

no merit to Petitioner’s claims of due process violations.
Judge Simandle appointed counsel to represent Petitioner during
the evidentiary hearing and “considered numerous briefs and
supplemental submissions by both parties in connection with
Petitioner’s habeas petition, along with all of the underlying
evidence in this case.”

McAdams, 2016 WL 240877, at *7.

Petitioner could have challenged the sufficiency of the evidence
and findings on appeal but elected to seek the amended judgment
of conviction instead.
Petitioner’s assertions of a “vague” and “incomplete”
record are misleading.

His essential argument is that the

amended judgment of conviction contradicts Judge Simandle’s
interpretation of the record that existed at the time of the

15

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 16 of 18 PageID: 446

hearing.

Failing to consider the amended judgment during the

initial proceedings cannot be procedural error because the
amended judgment did not exist when the court decided
Petitioner’s § 2255 and Rule 59(e) motions.

Thus, Petitioner’s

argument is at its core a claim that new evidence, the amended
judgment of conviction, should change the result of his § 2255
motion.
Motions presenting new evidence in support of an alreadylitigated claim are considered second or successive § 2255
motions and are not properly brought under Rule 60(b).

Gonzalez

v. Crosby, 545 U.S. 524, 531-32 (2005); United States v.
Donahue, 733 F. App’x 600, 602-03 (3d Cir. 2018).

While

Petitioner makes sound and robust arguments in support of his
motion, the unfortunate truth for him is that, because of the
procedural posture of this case, this Court lacks jurisdiction
to grant him the relief that he seeks.

The Court will not

appoint counsel to reopen the § 2255 proceedings because the
Court does not have jurisdiction to reopen the proceedings.
Accordingly, the motion will be dismissed for lack of
jurisdiction.
“When a second or successive habeas petition is erroneously
filed in a district court without the permission of a court of
appeals, the district court’s only option is to dismiss the

16

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 17 of 18 PageID: 447

petition or transfer it to the court of appeals pursuant to 28
U.S.C. § 1631.”
2002).

Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.

Here, this Court does not find it in the interest of

justice to transfer this matter to the Third Circuit because the
Third Circuit recently held that “an incorrect career-offender
enhancement under the advisory guidelines is not cognizable
under § 2255 because it is not a fundamental defect that
inherently results in a complete miscarriage of justice.”
United States v. Folk, 954 F.3d 597, 604 (3d Cir. 2020).

Folk

is binding on this Court, and it squarely resolves the issue
here.

Therefore, it does not appear that Petitioner can satisfy

the requirements for bringing a second or successive petition
under § 2255(h).

Nothing in this opinion should be construed as

preventing Petitioner from asking permission from the Third
Circuit himself should he elect to do so, however.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2255.

To the extent a certificate of appealability is

required, the Court declines to issue one.
A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a

17

Case 1:13-cv-01612-NLH Document 67 Filed 08/29/22 Page 18 of 18 PageID: 448

constitutional right.” 28 U.S.C. 2253(c)(2).

“A petitioner

satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

“When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the district court was correct in its procedural
ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, jurists of reason would not find it debatable whether
this Court’s procedural ruling is correct. Accordingly, this
Court will decline to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
V.

CONCLUSION
For the reasons expressed herein, the Court will dismiss

Petitioner’s motion for lack of jurisdiction.

An accompanying

Order shall issue.

August 29, 2022
Date
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

18