SCURRY v. UNITED STATES OF AMERICA
Filing
14
OPINION. Signed by Judge Renee Marie Bumb on 6/28/2016. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DARNELL SCURRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civil Action No. 14-7934(RMB)
OPINION
BUMB, District Judge
This matter comes before the Court upon Petitioner’s motion
to vacate, set aside or correct sentence under 28 U.S.C. § 2255.
(ECF
No.
1);
and
Petitioner’s
subsequently
filed
motion
for
return of property under Federal Rule of Criminal Procedure 41
(“Mot. for Return of Property”) (ECF No. 13.) For the reasons
discussed below, the Court will dismiss the § 2255 motion as
time barred, and direct the Clerk to docket Petitioner’s motion
for return of property in a new civil action.
I.
BACKGROUND
On July 10, 2012, Petitioner pled guilty before this Court
to the one-count Indictment in Criminal Action No. 11-851(RMB),
by
agreeing
he
was
a
felon
in
possession
of
a
firearm
in
violation of 18 U.S.C. § 922(g)(1). United States v. Scurry,
Criminal Action No. 11-851(RMB) (D.N.J. Minute Entry, Plea, ECF
No. 12; Application for Permission to Enter Guilty Plea, ECF No.
13; Plea Agreement, ECF No. 14.) The Plea Agreement included a
waiver of Petitioner’s right to raise any direct appellate or
collateral challenges to his conviction and sentence. (Id., Plea
Agreement, ECF No. 14 at 3.)
On January 3, 2013, the Government informed defense counsel
that while preparing to present New Jersey State Trooper Michael
J. Ryan as a witness at Petitioner’s sentencing hearing, the
Government learned that Ryan remained under investigation in a
2010 case for allegations of falsifying reports and records,
theft, false arrest, threats and excessive force. (Scurry v.
United States, 14-7934(RMB), Pet., Ex. B, ECF No. 1 at 21-23.)
There was also an open 2012 investigation where Trooper Ryan was
accused of misconduct. (Id. at 23.)
Sentencing was held on May 30, 2013. (United States v.
Scurry,
11-851(RMB),
Judgment,
ECF
No.
Minute
17.)
Entry,
Trooper
Sentencing,
Ryan
was
not
ECF
No.
presented
16;
as
a
witness. Petitioner was sentenced to imprisonment for a term of
85 months, a three-year term of supervised release, forfeiture
of certain property, and a special assessment of $100. (Id.)
On December 22, 2014, Petitioner filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241, relying on 28
U.S.C.
§
2255(e)
and
(h)
to
assert
a
claim
of
innocence,
asserting he only pled guilty on the ill-advice of counsel.
2
(Id., Pet., ECF No. 1 at 10.) He stated he was set up by the
trooper,
as
evidenced
by
the
allegations
that
the
trooper
falsified charges in another matter. (Id., ECF No. 1 at 11.)
Therefore, Petitioner argues his rights were violated because
(1) the Government did not withdraw the charge when it learned
of
the
investigations
of
Trooper
Ryan;
(2)
and
counsel
was
ineffective for not immediately seeking dismissal of the charges
upon receiving the Government’s disclosure of the investigations
of Trooper Ryan. (Id. at 12-13.)
In an Opinion dated February 6, 2015, this Court noted
there is a one-year statute of limitations under 28 U.S.C. §
2255
to
challenge
a
federal
court
conviction
and
sentence.
(Opinion, ECF No. 3 at 5-6.) The statute begins to run when the
conviction becomes final. 28 U.S.C. § 2255(f)(1). When no appeal
from the judgment is taken, the conviction becomes final when
the time to file a notice of appeal expires, within fourteen
days after the entry of judgment. United States v. Delgado, 363
F. App’x 853, 854 (3d Cir. 2010); Fed. R. App. P. 4(b)(1)(A).
Petitioner’s conviction became final on June 14, 2013, and the
one-year statute of limitations expired on June 13, 2014, more
than six months before he filed the § 2241 petition. (Opinion,
ECF No. 3 at 6.)
This Court recognized that Petitioner sought to get around
the statute of limitations for motions under 28 U.S.C. § 2255 by
3
bringing his petition under 28 U.S.C. § 2241, in reliance on
subsections (e) and (f) of 28 U.S.C. § 2255. (Id. at 9-11.)
Challenges to a federal conviction and sentence presumptively
must
be
brought
under
28
U.S.C.
§
2255.
Okereke
v.
United
States, 307 F.3d 117, 120 (3d Cir. 2002). 28 U.S.C. § 2255(e),
known as the safety-valve, was not helpful to Petitioner because
§ 2255 does not become inadequate or ineffective merely because
the statute of limitations under § 2255 has expired. (Id. at
11.)
Subsection (h) of 28 U.S.C. § 2255 was also not helpful to
Petitioner because it applies to second or successive motions
under 28 U.S.C. § 2255, and Petitioner had not brought a first
motion under § 2255. (Id. at 12-13.) Because the Court lacked
jurisdiction to hear Petitioner’s claims under 28 U.S.C. § 2241,
it construed his petition as arising under 28 U.S.C. § 2255, but
dismissed it as untimely and barred by the waiver in the plea
agreement. (Id. at 14-15.)
As required under Castro v. United States, 540 U.S. 375,
383 (2003), the Court gave Petitioner the opportunity to do one
of the following: (a) withdraw the motion; (b) amend the motion
to state all of his § 2255 claims, or (c) to proceed with the
present motion under 28 U.S.C. § 2255, although he would be
required to show a basis for equitable tolling of the statute of
limitations if he wished to proceed under 28. U.S.C. § 2255.
4
(Id.) On June 11, 2015, Petitioner filed a written statement
that
he
wished
to
proceed
with
the
present
motion
under
28
U.S.C. § 2255. (Reply to Memorandum and Order of May 11, 2015,
ECF No. 8.)
Petitioner filed his written brief in support of tolling
the statute of limitations on October 7, 2015. (§ 2255 Motion
Showing of Timeliness (“Mot. re Timeliness”), ECF No. 12.) The
issue of whether the statute of limitations bars Petitioner’s §
2255 motion is now before the Court. The Court will also address
Petitioner’s motion for return of property, filed in this matter
on June 2, 2016. (Mot. for Return of Property, ECF No. 13.)
II.
DISCUSSION
A.
Statute of Limitations
Petitioner
argues
intervening
circumstances
justify
late
filing of his claim of innocence under 28 U.S.C. § 2255(f)(4).
(Mot.
re
Timeliness,
circumstances
are
that
found
of
the
guilty
ECF
his
No.
12
at
arresting
accusations
in
3-5.)
The
officers
the
2010
intervening
have
now
been
investigation
against them, unrelated to Petitioner’s criminal case. (Id.)
Petitioner
asserts
his
innocence,
however,
he
has
been
unable to uncover evidence due to the fact that he is in prison
and has limited resources. (Id. at 3.) Petitioner has made FOIA
requests related to the arresting officers in an attempt to
prove his innocence. (Id.) Petitioner now seeks discovery or a
5
stay of this proceeding under 28 U.S.C. § 2251, until he is
released
from
prison
and
is
“able
to
assist
himself
in
discovery.” (Id. at 5-6.)
28 U.S.C. § 2255(f)(4) provides:
(f) A 1-year period of limitation shall
apply to a motion under this section. The
limitation period shall run from the latest
of. . .
(4) the date on which the facts
supporting
the
claim
or
claims
presented could have been discovered
through the exercise of due diligence.
Essentially, Petitioner asserts that because his arresting
officers were found guilty of misconduct in a 2010 case, he will
ultimately be able to prove that they planted the gun on him in
the underlying criminal action here. He claims that he only pled
guilty
because
believe
him.
defense
This
counsel
Court
finds
told
him
the
jury
that
Petitioner
would
has
not
not
yet
discovered facts to support his claim of innocence that would
allow him to proceed under 28 U.S.C. § 2254(f)(4). He cannot use
28
U.S.C.
§
2255(f)(4)
to
get
court-sanctioned
discovery
to
attempt to find evidence supporting his claim.
Alternatively, Petitioner seeks a stay of this action until
he is released from prison and is free to conduct discovery on
his own.
Although the Court has authority under 28 U.S.C. §
2251 to stay a habeas proceeding, the interests of justice do
not support doing so in this matter. Petitioner has presented no
6
evidence, apart from his self-serving claim of innocence after
pleading guilty, that any officer in the underlying criminal
action
planted
a
gun
on
him.
If
Petitioner
can
find
such
evidence in the future, he may still seek to proceed under 28
U.S.C. § 2255(h)(1), by presenting the newly discovered evidence
of his innocence to the appropriate Court of Appeals.
B.
Motion for Return of Property
On June 2, 2016, Petitioner filed a motion in this habeas
proceeding for return of property under Federal Rule of Criminal
Procedure 41. (Mot. for Replevin, ECF No. 13.) Petitioner seeks
return of 115 dollars seized upon his arrest. (Id.) He contends
there
was
no
order
of
forfeiture
for
the
115
dollars
at
sentencing. (Id.)
Federal Rule of Criminal Procedure 41(g) provides:
A person aggrieved by an unlawful search and
seizure of property or by the deprivation of
property may move for the property's return.
The motion must be filed in the district
where the property was seized. The court
must receive evidence on any factual issue
necessary to decide the motion. If it grants
the motion, the court must return the
property to the movant, but may impose
reasonable conditions to protect access to
the
property
and
its
use
in
later
proceedings.
Once the criminal proceedings have terminated, the Government
bears the burden to demonstrate it has a legitimate reason to
retain the requested property seized for use in investigation
7
and trial. United States v. Chambers, 192 F.3d 374, 376 (3d Cir.
1999).
“A district court has jurisdiction to entertain a motion
for return of property even after the termination of criminal
proceedings against the defendant and such an action is treated
as a civil proceeding for equitable relief.” U.S. v. Bein, 214
F.3d 408, 411 (3d Cir. 2000) (citing United States v. McGlory,
202 F.3d 664, 670 (3d Cir. 2000) (en banc); Chambers, 192 F.3d
at 376–77 (citing United States v. Martinson, 809 F.2d 1364 (9th
Cir. 1987); Rufu v. United States, 20 F.3d 63, 65 (2d Cir.
1994); Thompson v. Covington, 47 F.3d 974, 975 (8th Cir. 1995)).
The Court will direct the Clerk to open a new civil action and
docket
Petitioner’s
motion
for
return
of
property
in
that
proceeding. The Court will also direct the Government to file a
response to the motion.1
III. CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to
a certificate of appealability in this matter. See Third Circuit
Local Appellate Rule 22.2. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing
of
the
denial
of
a
constitutional
1
right.”
28
U.S.C.
§
Petitioner alleged his 115 dollars is held in the Court’s
escrow account. The Court has no such account. It is the
Government that retains seized property during a criminal
proceeding.
8
2253(c)(2).
The
discussion
of
Petitioner’s
claims
above
demonstrates Petitioner has not made such a showing, and this
Court will not issue a certificate of appealability.
IV.
CONCLUSION
For the reasons discussed above, in the accompanying Order
filed
herewith,
motion
with
Petitioner’s
the
Court
prejudice,
motion
for
will
and
dismiss
direct
return
of
Petitioner’s
the
property
Clerk
in
to
a
new
§
2255
docket
civil
action.
s/RENÉE MARIE BUMB__________
Renée Marie Bumb
United States District Judge
Dated: June 28, 2016
9
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