SCURRY v. UNITED STATES OF AMERICA
Filing
17
OPINION FILED. Signed by Judge Renee Marie Bumb on 11/30/16. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
:
:
:
:
:
:
:
:
DARNELL SCURRY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Civil Action No. 14-7934(RMB)
OPINION
BUMB, United States District Judge
This matter comes before the Court upon Petitioner’s motion
for reconsideration of this Court’s Opinion and Order denying
Petitioner’s motion to vacate, set aside or correct sentence
under 28 U.S.C. § 2255. (ECF No. 16).
I.
BACKGROUND
On
June
28,
2016,
this
Court
dismissed
as
time-barred
Petitioner’s motion to vacate, set aside or correct sentence,
challenging his June 14, 2013 conviction for violation of 18
U.S.C. § 922(g)(1), felon in possession of a firearm.
(ECF Nos.
14, 15; United States v. Scurry, 11cr851 (RMB) (D.N.J)).
On
June 27, 2016, the Clerk of Court received Petitioner’s selfstyled “Motion for Leave Requesting to Amend Johnson Issue to
Petitioner’s
Pending
Section
2255
Motion.”
Scurry
v.
United
States, Civil Action No. 16-3828 (RMB) (ECF No. 1 at 1.)1 The
following day, the same day the Opinion and Order dismissing
Civil
Action
No.
14-7434
was
entered,
the
Clerk
of
Court
docketed Petitioner’s motion for leave to amend in a new civil
action,
16-3828
(RMB).
When
Petitioner
realized
what
had
occurred, he filed the present motion for reconsideration, in an
effort to preserve his Johnson claim. (ECF No. 16.)
Petitioner also seeks appointment of counsel to brief his
Johnson claim, noting that the Public Defender has a conflict
based on Petitioner’s other claims of ineffective assistance of
counsel.
counsel
(Id.; Ex. 1, ECF No. 16 at 7-8.)
to
represent
a
petitioner
pursuant to 18 U.S.C. § 3006A.2
in
a
A court may appoint
§
2255
proceeding
See Rule 8(c), Rules Governing
Section 2255 Proceedings for the United States District Courts.
1
Petitioner’s claim does not fall squarely within the holding of
Johnson, but instead relies on language in U.S.S.G. § 4.B1.2
that is identical to the language in the residual clause of the
ACCA, found to be void for vagueness in Johnson.
The Third
Circuit, in United States v. Calabretta, 831 F.3d 128, 137 (3d
Cir. 2016) held that the residual clause in U.S.S.G. § 4B1.2 is
unconstitutionally vague in light of Johnson. The Supreme Court
has granted certification in Beckles v. United States to address
the circuit split over whether Johnson’s constitutional holding
applies to the residual clause in U.S.S.G. § 4B1.2(a)(2).
Id.
at 134, n.6.
2
18 U.S.C. § 3006A(2)(B) provides:
(2) Whenever the United States magistrate
judge or the court determines that the
interests of justice so require,
2
II.
DISCUSSION
On June 26, 2015, the Supreme Court held that increasing a
defendant’s sentence “under the residual clause of the Armed
Career Criminal Act violates the Constitution's guarantee of due
process.”
Johnson
(2015).
v.
United
States,
135
S.Ct.
2551,
2563
On April 18, 2016, the Supreme Court held that the
Johnson
decision
is
retroactively
applicable
on
review.
collateral
Welch v. U.S., 136 S.Ct. 1257, 1268 (2016).
Pursuant to 28 U.S.C. § 2255(f)(3), the one-year statute of
limitations for a motion under 28 U.S.C. § 2255 begins to run on
“the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on
collateral review.”
Petitioner filed his request to include a
Johnson claim in his pending § 2255 motion in Civil Action No.
14-7934
within
one
year
of
the
Supreme
Court’s
decision
in
Johnson.
Federal Rule of Civil Procedure 60(b)(1) provides that “the
court may relieve a party . . . from a final judgment, or
proceeding
for
the
following
reasons
“mistake,
representation may be provided for any
financially eligible person who—
. . .
(B) is seeking relief under section
2241, 2254, or 2255 of title 28.
3
inadvertence,
surprise, or excusable neglect.”
The Court mistakenly docketed
in a new civil action Petitioner’s motion for leave to amend his
2255 motion in Civil Action No. 14-7934.
Due to this mistake,
the Court entered judgment dismissing Petitioner’s 2255 motion
as time-barred.
Under the present circumstances, Petitioner cannot bring
his
otherwise
timely
submitted
Johnson
claim
without
seeking
permission from the Third Circuit Court of Appeals to file a
second or successive motion under 28 U.S.C. § 2255.
the
Court
will
reopen
this
matter
and
permit
Instead,
Petitioner
to
proceed with his Johnson claim in Civil Action No. 14-7934.
This Court’s Opinion and Order, dated June 28, 2016 (ECF Nos.
14, 15), shall remain in force with respect to Petitioner’s nonJohnson claims.
III. CONCLUSION
For
the
Petitioner’s
reasons
motion
discussed
for
judgment in this action.
“Motion
for
Leave
above,
the
reconsideration
Court
and
will
vacate
grant
final
The Court will grant Petitioner’s
Requesting
to
Amend
Johnson
Issue
to
Petitioner’s Pending Section 2255 Motion,” which contains the
basis for his Johnson claim.
Petitioner’s first habeas petition
shall be amended to include his Johnson claim. The Court will
appoint counsel to Petitioner, and permit counsel to file a
4
brief in support of Petitioner’s Johnson claim. Respondent may
then file a response.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 30 2016
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?