PIERCE v. UNITED STATES OF AMERICA

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 8/6/2015. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________:
DARYL PIERCE,

Civ. No. 14-0758 (NLH)
OPINION

APPEARANCES:
Daryl Pierce, #05620-067
U.S.P. McCreary
P.O. BOX 3000
Pine Knot, KY 42635
Petitioner pro se

HILLMAN, District Judge
This matter is presently before the Court upon receipt of a
Motion (ECF No. 7) by Petitioner Darryl Pierce seeking
reconsideration of the Court’s March 3, 2015 Order (ECF No. 6)
dismissing his motion under 28 U.S.C. § 2255 for lack of
jurisdiction as “second and successive.”

For the reasons that

follow, the Motion will be DENIED.
I.

BACKGROUND

The procedural history of this case is set forth in the
Court’s March 3, 2015 Opinion (ECF No. 5) and need not be
repeated in detail here.

In relevant part, in May 2007,

Petitioner pled guilty to a violation of 18 U.S.C. §§ 922(g) and
924(e)(1).

On November 15, 2007, this Court sentenced the

Petitioner to an enhanced term of 16 years (192 months) pursuant
to the Armed Career Criminal Act (“ACCA”).
On October 19, 2010, Petitioner filed a motion under 28
U.S.C. § 2255 challenging his conviction on various grounds. See
Pierce v. United States of America, Civil Action No. 10-5387
(NLH).

That Petition was dismissed as untimely.

Petitioner’s

Motion for Reconsideration was denied in an Order dated June 24,
2014 and the civil case was terminated.
Petitioner then filed another motion to vacate, set aside
or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No.
1), which resulted in the instant case, Civ. No. 14-758.
Petitioner also submitted an Addendum (ECF No. 2) and an Amended
Petition (ECF No. 4).
In his submissions, Petitioner challenged his conviction on
the ground that he received ineffective assistance of counsel
when his counsel failed to object to, and advised him to plead
guilty to, an Armed Career Criminal Act designation. (Am. Pet.
4, ECF No. 4).

In support of his position, Petitioner cites to

Descamps v. United States, 133 S. Ct. 2276, 2281, 186 L. Ed. 2d
438 reh'g denied, 134 S. Ct. 41, 186 L. Ed. 2d 955 (2013);
Alleyne v. United States, 133 S. Ct. 2151, 186 L. Ed. 2d 314
(2013); Apprendi v. New Jersey, 530 U.S. 466 (2000); and S.
2

Union Co. v. United States, 132 S. Ct. 2344, 183 L. Ed. 2d 318
(2012).
In an Opinion dated March 3, 2015, the Court determined
that the habeas petition was a “second or successive” petition
for which Petitioner had not sought permission from the Third
Circuit Court of Appeals. (ECF No. 2).

Accordingly, the § 2255

petition was dismissed for lack of jurisdiction and the Court
denied a Certificate of Appealability.

The case was closed.

On or about March 20, 2015, Petitioner filed a Motion for
Reconsideration (ECF No. 7), and the case was reopened for
review by a judicial officer.

In his Motion, Petitioner relies

on the Supreme Court’s holding in Slack v. McDaniel, 529 U.S.
473, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000), and asserts that
because his previous § 2255 petition was dismissed as untimely,
it was not adjudicated on the merits.

Petitioner contends that

the instant § 2255 petition is therefore not “second or
successive” because his first federal habeas petition under §
2255 was dismissed on procedural grounds.

Petitioner asks the

Court to vacate its March 3, 2015 Order and reinstate the case.
II.

STANDARD OF REVIEW

A motion for reconsideration may be treated as a motion to
alter or amend judgment under FED. R. CIV. P. 59(e), or as a
motion for relief from judgment or order under FED. R. CIV. P.
60(b), or it may be filed pursuant to Local Civil Rule 7.1(i).
3

The purpose of a motion for reconsideration “is to correct
manifest errors of law or fact or to present newly discovered
evidence.” Max’s Seafood Cafe ex rel. Lou–Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999).

A judgment may be

altered or amended only if the party seeking reconsideration
shows: (1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need
to correct a clear error of law or fact or to prevent manifest
injustice. Id.
A motion for reconsideration may not be used to re-litigate
old matters or argue new matters that could have been raised
before the original decision was reached. P. Schoenfeld Asset
Mgmt., L.L.C. v. Cendant Corp., 161 F. Supp. 2d 349, 352 (D.N.J.
2001).

Mere disagreement with the Court will not suffice to

show that the Court overlooked relevant facts or controlling
law, United States v. Compaction Sys. Corp., 88 F. Supp. 2d 339,
345 (D.N.J. 1999), and should be dealt with through the normal
appellate process, S.C. ex rel. C.C. v. Deptford Twp. Bd. of
Educ., 248 F. Supp. 2d 368, 381 (D.N.J. 2003).
III. ANALYSIS
Petitioner does not contend that there has been an
intervening change in the law; nor does he allege the
availability of new evidence that was not available when the
4

Court issued its Order dismissing the § 2255 habeas petition.
Rather, Petitioner moves for reconsideration only on the basis
that there is a purported need to correct a clear error of law
or fact. (Mot. 3, 4, ECF No. 7).
Specifically, Petitioner asserts that his previous motion
under § 2255 — which was deemed untimely — was dismissed on
procedural grounds.

Because Petitioner contends that his first

federal habeas petition was not adjudicated on the merits, he
concludes that the instant § 2255 petition cannot be considered
“second and successive.”

As stated above, Petitioner relies on

the holding in Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595,
146 L. Ed. 2d 542 (2000) in support of his position.
The holding in Slack and its progeny, however, determined
that petitions that were dismissed for failure to exhaust state
remedies had not been adjudicated on the merits; thus, petitions
filed subsequent to those types of dismissals were not “second
and successive” as that term is understood in the habeas
context. See Slack, 529 U.S. 473.
By contrast, courts are generally in agreement that the
dismissal of a first federal petition as untimely constitutes an
adjudication on the merits, rendering any later-filed petition
“second or successive.” See, e.g., McNabb v. Yates, 576 F.3d
1028, 1030 (9th Cir. 2009) (“We therefore hold that dismissal of
a section 2254 habeas petition for failure to comply with the
5

statute of limitations renders subsequent petitions second or
successive for purposes of the AEDPA ....”) (cited with approval
in Stokes v. Gehr, 399 F. App'x 697, 699 n. 2 (3d Cir. 2010));
Villanueva v. United States, 346 F.3d 55, 58 (2d Cir. 2003)
(holding that a petition that has been dismissed as time-barred
has been decided on the merits and renders any petition “second
or successive” under the AEDPA); see also Candelaria v.
Hastings, No. 12-3846, 2014 WL 2624766, at *3 (D.N.J. June 12,
2014); Terry v. Bartkowski, No. 11–0733, 2011 WL 5142859, at *3
(D.N.J. Oct. 28, 2011).
A court in this circuit concisely articulated the argument
against treating timeliness as a technical procedural ruling:
Harris argues that if a district court dismisses an
initial § 2255 petition on timeliness grounds, a
subsequent § 2255 petition is not “second or
successive” because the prior dismissal was, in the
words of the Supreme Court, a dismissal on “technical
procedural reasons” that should not bar the prisoner
from receiving habeas relief. Stewart, 523 U.S. at 645
(illustrating the term “technical procedural reasons”
with decisions in which district courts dismissed
habeas petitions for failure to pay the $5 filing fee
or submit in forma pauperis forms).
We decline Harris's invitation to define AEDPA's oneyear statute of limitations as a mere “technical
procedural” rule akin to a filing fee requirement.
Under Harris's theory, a defendant whose initial
petition was time-barred could skirt both the statute
of limitations and AEDPA's gatekeeping provisions by
filing in the district court a second petition - which
would actually be deemed a first petition - without
receiving leave of the Court of Appeals. Such a
result is not compelled by the Supreme Court's
decisions in Slack and Stewart, and it would
6

eviscerate AEDPA's statutory scheme. We therefore
conclude that, even though the term “second or
successive petition” is a “term of art given substance
in [the Supreme Court's] prior habeas corpus cases,”
Slack, 529 U.S. at 486, it is a term whose post-AEDPA
meaning by necessity includes habeas petitions by
defendants whose initial petitions were dismissed on
statute of limitations grounds. Accord McMillan v.
Senkowski, No. 01-1259, 2002 WL 221587, at * 3
(S.D.N.Y. Feb.11, 2002); Hamer v. Cockrell, No. 012020, 2002 WL 66310, at * 1 (N.D.Tex. Jan.11, 2002).
See also Guyton v. United States, 23 [F. App’x] 539,
540 (7th Cir. 2001) (dismissal of a habeas petition
“because the district court determined, albeit
erroneously, that it was not filed within the
applicable statute of limitations ... operates to
dispose of the case on the merits as much as an
erroneous finding that a petitioner had failed to
state an element of a claim”).
United States v. Harris, No. 02-6825, 2002 WL 31859440, at *3
(E.D. Pa. Dec. 20, 2002).
Thus, because Petitioner’s initial federal habeas petition,
Civ. No. 10-5387, was dismissed as untimely, it was adjudicated
on the merits and the instant Petition is “second and
successive.”

1

1

This Court notes that case law outside of the AEDPA statute of
limitations context exists which suggests that a ruling based on
timeliness is a procedural ruling which does not constitute an
adjudication “on the merits.” See e.g., United States v. Kwai
Fun Wong, 135 S. Ct. 1625, 1628, 191 L. Ed. 2d 533 (2015)
(finding that a time bar is a procedural rule); Gonzalez v.
Crosby, 545 U.S. 524, 532 n.4, 125 S. Ct. 2641, 2648, 162 L. Ed.
2d 480 (2005) (stating that a ruling based on a statute of
limitations bar was a type of ruling that precluded a
determination on the merits). However, these cases do not
represent binding precedent that this concept applies
universally, including habeas petitions. Moreover, these cases
do not directly address the question of whether a statute of
limitations ruling constitutes a ruling on the merits and,
7

As this Court explained in its March 3, 2015 Opinion
dismissing this Petition for lack of jurisdiction, Petitioner
did not allege in his initial Petition (ECF No. 1), the Addendum
(ECF No. 2), or his Amended Petition (ECF No. 4) that he sought
or received permission from the Third Circuit to file a second
or successive motion. (Order 5 n.2, Mar. 3, 2015, ECF No. 5).
Neither does Petitioner make this allegation in his Motion for
Reconsideration.

Accordingly, this Court properly determined

that it lacked jurisdiction to consider this unauthorized
“second or successive” petition.
Moreover, in the March 3, 2015 Opinion, this Court noted
that under 28 U.S.C. §§ 2244 and 2255, the Court of Appeals may
only authorize the filing of a second or successive § 2255
motion if it contains:
(1)

newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would

instead, touch on the implications of a ruling based on
timeliness in the course of deciding another issue. See e.g.,
Kwai Fun Wong, 135 S. Ct. 1625 (determining that FTCA time bar
is nonjurisdictional); Gonzalez, 545 U.S. 524 (discussing
whether a rule 60(b) motion is, in substance, a successive
habeas petition); cf. Slack, 529 U.S. 473 (explicitly holding
that failure to exhaust does not constitute a ruling on the
merits). Finally, as discussed above, other circuits and courts
in this district have concluded that a dismissal of a habeas
petition based on untimeliness constitutes an adjudication on
the merits. Therefore, until this issue is addressed with
certainty in binding precedent, this Court will join with other
courts in this district and conclude that a dismissal of a §
2254 petition based on the statute of limitations is an
adjudication on the merits which renders a subsequently filed
petition “second or successive.”
8

(2)

be sufficient to establish by clear and
convincing evidence that no reasonable factfinder
would have found the movant guilty of the
offense, or
a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.

28 U.S.C. § 2255.
This Court then discussed whether a transfer of this
Petition to the Court of Appeals for the Third Circuit, for
consideration as an application for leave to file a “second or
successive” petition, would be in in the interest of justice.
Because Petitioner did not allege as a grounds for relief any of
those for which a court of appeals may authorize the filing of a
second or successive § 2255, this Court declined to transfer the
Petition.
This Court now clarifies that it reached this conclusion
because, contrary to Petitioner’s assertions, the cases relied
upon by Petitioner have not been held to apply retroactively on
collateral review. See O'Neal-Sloane v. Warden Allenwood FCI,
Medium, 576 F. App'x 63, 66 (3d Cir. 2014) (citing United States
v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014)) (holding that
Alleyne does not apply retroactively to cases on collateral
review); Wilcox v. United States, No. 11-1247, 2015 WL 179542,
at *5 (D.N.J. Jan. 14, 2015) (citing Groves v. United States,
755 F.3d 588, 593 (7th Cir. 2014) (holding that Descamps has
never been made retroactively applicable to cases on collateral
9

review); United States v. Swinton, 333 F.3d 481, 491 (3d Cir.
2003) (holding that Apprendi is not applicable retroactively to
cases on collateral review). 2
IV.

CONCLUSION

For the reasons set forth above, Petitioner’s Motion for
Reconsideration (ECF No. 7) is denied.

The case will be closed.

An appropriate Order follows.

___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

Dated: August 6, 2015
At Camden, New Jersey

2

As noted earlier, Petitioner also cites Southern Union in
support of his Petition. 132 S. Ct. 2344, 183 L. Ed. 2d 318
(2012). However, Southern Union simply holds that the Apprendi
rule applies to the imposition of criminal fines and, thus, has
no bearing on the relief sought in the instant Petition.
Moreover, as an extension of Apprendi, see United States v.
Basile, 570 F. App'x 252, 258 (3d Cir. 2014), it is unlikely
that Southern Union would apply retroactively.
10