SELLERS v. UNITED STATES OF AMERICA

Filing 3

MEMORANDUM OPINION NOTICE AND ORDER, Petitioner's Motion 1 is dismissed for failure to comply with the requirements of Habeas Rule 2; ORDERED that the Clerk shall administratively terminate this matter, etc; ORDERED that Petitioner may have this matter reopened if he submits, within 30 days, his amended motion executed in accordance with the guidance provided to him herein, etc.; ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and Order upon Petitioner by certified mail, return receipt requested, and include in said mailing a blank Section 2255 motion form (sent). Signed by Judge Renee Marie Bumb on 1/30/2014. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_______________________________:
FREDERICK SELLERS,

Civil Action No.
14-0388 (RMB)

MEMORANDUM OPINION
NOTICE AND ORDER

BUMB, District Judge:
This matter comes before the Court upon the Clerk’s receipt
of Petitioner’s pro se § 2255 motion (“Motion”) challenging his
federal sentence.

See Docket Entry No. 1.

Petitioner’s judgment of conviction in the underlying
criminal matter was entered on April 7, 2011.

See United States

v. Sellers, Crim. Action No. 10-0434 (RMB) (D.N.J.), Docket Entry
No. 53.

Petitioner then challenged that conviction on direct

appeal.

See United States v. Sellers, USCA Index No. 11-1939 (3d

Cir.).
merits.

His direct appellate challenges were dismissed on the
See id., Mandate dated Dec. 28, 2012.

Petitioner then

sought certiorari from the United States Supreme Court.
Docket Entry dated Jan. 30, 2013.

See id.,

The Supreme Court denied him

certiorari on February 25, 2013; that development concluded
Petitioner’s direct appellate process.
Page -1-

See United States v.

Sellers, 133 S. Ct. 1482 (2013).
Five months after that development, Petitioner filed, in his
underlying criminal matter, a motion asserting jurisdiction under
Fed. R. Crim. P. 33.

See United States v. Sellers, Crim. Action

No. 10-0434 (RMB) (D.N.J.), Docket Entry No. 61.

Although

Petitioner’s Rule 33 motion alleged his entitlement to a new
trial in light of what he elected to qualify as newly discovered
evidence, the record amply indicated that this evidence was not
new because it was duly served upon, and extensively used by
Petitioner’s defense counsel.

See id., Docket Entry No. 66

(addressing the same in great detail).
denied Petitioner’s Rule 33 motion.

This Court, therefore,

See id.

The Court’s

determination to that effect was docketed on October 24, 2013.
See id.
On January 21, 2014, i.e., about eleven months after
conclusion of his direct appellate process, Petitioner submitted
his § 2255 Motion at bar.
1.

See Instant Matter, Docket Entry No.

The Motion presented a 58-page document containing, in

effect, seven claims styled by Petitioner as sub-claims of a
single challenge.

See id. at 15-16.

Each of these sub-claims,

in turn, presented a lengthy narrative (ranging from four to ten
pages).

See id.

Notably, each such narrative challenged various

aspects of Petitioner’s underlying criminal proceedings (e.g.,
stating challenges to evidence admitted at trial or to the

Page -2-

prosecutor’s closing statement, or to this Court’s jury charge,
etc.), thus presenting, effectively, a challenge that should have
been raised on direct appeal.
Docket Entry No. 1.

See generally, Instant Matter,

However, in order to qualify his challenges

as § 2255 claims, Petitioner attempted to stitch them to the
performance rendered by his counsel by Petitioner’s bold
conclusions that his counsel was “ineffective” by not addressing
or “insufficiently” addressing the issues underlying these de
facto direct appellate challenges.

See, e.g., id. at 29-35 (one

of Petitioner’s narratives asserting that his defense counsel’s
trial argument was “in itself inadequate” because: (a) Petitioner
“contends [that] there was no curative instruction”; and (b)
Petitioner opines that a curative instruction should have been
offered in light of Petitioner’s belief that “cumulative effect
[of certain statements] not only confused the jurors but [also]
highly prejudiced” Petitioner).
Petitioner’s Motion fails to comply with the requirements of
Habeas Rule 2, applicable to § 2255 actions through Habeas Rule
1(b).

“An unduly lengthy submission violates Habeas Rule 2(d).”

Nelson v. Holmes, 2013 U.S. Dist. LEXIS 62711, at *1, n.1 (D.N.J.
Apr. 29, 2013) (noting that a 27-page habeas petition violated
the Rule and citing Simms v. Shartle, 2013 U.S. Dist. LEXIS
34565, at *1 (D.N.J. Mar. 12, 2013); Samha v. Lagana, 2012 U.S.
Dist. LEXIS 98191, at *1 (D.N.J. July 12, 2012)).

Page -3-

“Moreover,

while a pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance,
‘[h]abeas corpus petitions must meet heightened pleading
requirements.’”

Id. (quoting McFarland v. Scott, 512 U.S. 849,

856 (1994), and

citing Royce v. Hahn, 151 F.3d 116, 118 (3d Cir.

1998); Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d Cir.
1989)).

Indeed, Habeas Rule 2(c) “requires a petition to

‘specify all the grounds for relief’ . . . and [does] not allow
[habeas litigants] to submit voluminous filings asserting
multitudes of claims conflated into numerous Hydra-like umbrella
challenges.”

Simms v. Shartle, 2012 U.S. Dist. LEXIS 140316, at

*3 (D.N.J. Sept. 27, 2012) (citations and internal quotation
marks omitted).
Furthermore, a motion filed under 28 U.S.C. § 2255 cannot
“broaden . . . the scope of collateral attack available to a
prisoner prior to the enactment of § 2255 through writs of coram
nobis and habeas corpus.”

See, e.g., United States v.

McNicholas, 298 F.2d 914 (4th Cir.), cert. denied, 369 U.S. 878
(1962).

Therefore, a § 2255 petitioner can neither litigate nor

re-litigate de facto direct appellate challenges by simply
dressing them “in different legal garb[s],” e.g., by stitching
them to the performance of defense counsel through self-serving,
bold assertions.

De Welles v. United States, 372 F.2d 67, 69-70

(7th Cir.) (litigation “of trial issues under different labels or

Page -4-

on expanded allegations that could have been made in the first
instance is not contemplated by section 2255”), cert. denied, 388
U.S. 919 (1967); accord McFarland, 512 U.S. at 856 (“Federal
courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face”).
For instance,
To establish a claim of ineffective assistance of
counsel, [Petitioner] must demonstrate his attorney’s
performance was deficient and that he was prejudiced by
this deficiency. [See] Strickland v. Washington, 466
U.S. 668, 687 (1984). That is, he must prove counsel’s
performance “fell below an objective standard of
reasonableness,” id. at 688, and that “there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different,” id. at 694. Counsel cannot
be ineffective for failing to raise meritless claims,
and counsel’s strategic choices are reviewed with a
strong presumption of correctness. See Sistrunk v.
Vaughn, 96 F.3d 666, 670 (3d Cir. 1996). To succeed on
an ineffective assistance of counsel claim, petitioners
must show counsel’s performance was deficient based on
the “facts of the particular case, viewed as of the
time of counsel’s conduct.” Strickland, 466 U.S. at
690.
United States v. Martin, 262 F. App’x 392, 395-96 (3d Cir. 2008)
(emphasis supplied).
Correspondingly, Petitioner’s § 2255 allegations cannot be
de facto direct appellate challenges adorned by his self-serving
bold conclusions or his mere recitals of the Strickland prongs,
or by numerous repeats of the case law terminology used in the
Strickland progeny.

Rather, these allegations must be reduced to

bona fide statements that are: (a) clear and concise; and (b)

Page -5-

“demonstrate/show” Petitioner’s entitlement for § 2255 relief.
Accord 28 U.S.C. § 2254 Rule 2(c), (applicable to Section 2255
proceedings through Rule 1(b)).
Therefore, the Court will dismiss Petitioner’s Motion; such
dismissal will be with leave to file an amended motion complying
with the guidance provided to Petitioner herein.
IT IS, therefore, on this 30th day of January 2014,
ORDERED that Petitioner’s Motion, Docket Entry No. 1, is
dismissed for failure to comply with the requirements of Habeas
Rule 2; and it is further
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 administrative termination is not a dismissal
on the merits, see Papotto v. Hartford Life & Accident Ins. Co.,
731 F.3d 265 (3d Cir. Sept. 26, 2013); and it is further
ORDERED that this Court retains jurisdiction over this
matter; and it is further
ORDERED that Petitioner may have this matter reopened if he
submits, within thirty days from the date of entry of this
Memorandum Opinion, Notice and Order, his amended motion executed
in accordance with the guidance provided to hin herein; and it is
further
ORDERED that, in the event Petitioner timely submits such
Page -6-

amended motion, that amended motion will be deemed timely for the
purposes of the statute of limitations analysis; and it is
further
ORDERED that no action on the part of Respondent is required
at this juncture;1 and it is further
ORDERED that the Clerk shall serve this Memorandum Opinion,
Notice and Order upon Petitioner by certified mail, return
receipt requested, and include in said mailing a blank Section
2255 motion form; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion,
Notice and Order upon Respondent by means of electronic delivery.

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

1

Although there is no compulsory obligation to answer, and
such duty could be given rise only by a judicial order, see 28
U.S.C. § 2243 (federal district courts have a duty to screen and
summarily dismiss habeas petitions that plainly show the
petitioner is not entitled to relief); see also Habeas Rule 4
(same), Respondent made an appearance in this matter for notice
purposes. See Docket Entry No. 2.
Page -7-