SCURRY v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Renee Marie Bumb on 2/6/2015. (drw)n.m.
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
: Civil Action No. 14-7934 (RMB)
UNITED STATES OF AMERICA,
BUMB, District Judge:
This matter comes before the Court upon Petitioner’s motion
seeking to vacate, set aside or correct his sentence (albeit the
motion has been submitted under § 2241 and labeled a Section 2241
See Docket Entry No. 1.
Petitioner seeks this
relief, asserting that (1) the prosecutor
prosecutorial misconduct by “not dismissing charges against
Petitioner,” and (2) Petitioner’s defense counsel provided him
with ineffective assistance by “not moving for dismissal” of
Docket Entry No. 1, at 1, 4 and 5.1
To the extent these allegations present disguised § 2255
claims, those claims are subject to dismissal as untimely.
addition, these claims are barred by the waiver Petitioner
Since Petitioner, in no ambiguous terms, stated that he
was seeking to vacate, set aside or correct his sentence, the
Clerk construed his pleading as an application submitted pursuant
to 28 U.S.C. § 2255 and docketed it accordingly. See, generally,
executed in his underlying criminal matter.
To the extent
Petitioner’s challenges are intended to operate as § 2241 claims,
they are subject to dismissal for lack of jurisdiction.
the pleading at bar is deficient, and the Court will dismiss it.
On December 13, 2011, Petitioner, being a convicted felon,
was charged with illegal “possess[ion and] affecting commerce
[of] a firearm, a loaded . . . .357 Magnum caliber revolver.”
USA v. Scurry (“Scurry-I”), Crim. Action No. 11-0851, Docket
Entry No. 1, at 1.
On July 10, 2012, Petitioner entered an
agreement to plead guilty to and be sentenced on that charge.
See Scurry-I, Docket Entry No. 14, at 1.
The plea agreement he
was offered informed him that the offense he would be pleading
guilty to entailed “a statutory maximum sentence of ten years.”
Id. at 2.
The plea deal also included a waiver of his right to raise
any direct appellate and/or collateral challenges.
See id. at 3
(referring to § 2255 claims, direct appellate claims, as well as
any other form of collateral attack, be it sought by a motion or
by an application for a writ of habeas corpus, or by any other
In addition, the plea agreement informed Petitioner that
the task of sentence selection would be an exclusive function of
this Court, and the Government was reserving its right to seek,
inter alia, any appropriate sentence enhancement.2
See id. at 3.
Informed of all these aspects, Petitioner still applied for this
Court’s permission to plead guilty.
See id. Docket Entry No. 13.
Upon satisfying itself that Petitioner was entering the plea
agreement knowingly and voluntarily, and that his plea and waiver
were intelligent, this Court accepted the plea, and the parties
proceeded to the sentencing stage.
See id. Docket Entry dated
September 26, 2012.
On January 3, 2013, the Government, being mindful of its
continuous Brady v. Maryland, 373 U.S. 83 (1963), obligations and
acting out of an abundance of caution, informed Petitioner of the
information the Government had obtained about the trooper who
made the statement upon which the Government contemplated
reliance for the purposes of seeking Petitioner’s sentencing
See Instant Matter, Docket Entry No. 1, at 22-23.
Noting that the trooper was undergoing an internal agency
investigation (based on the allegations that, during the events
unrelated to Petitioner, the trooper engaged in theft, threats,
excessive force, falsification of records and fabrication of
One of such enhancements of Petitioner’s prison term that
the Government was considering ensued from a written statement
executed by one of the state troopers who participated in
Petitioner’s arrest stated that Petitioner had heroin and “crack”
cocaine. See Instant Matter, Docket Entry No. 1, at 22, 34-35.
While not pursuing controlled substance charges against
Petitioner, the Government contemplated making an application for
a sentence enhancement on the basis of that statement.
charges, and also posed for a photograph with seized weapons and
controlled substances), the Government: (a) informed Petitioner
of its election not to rely on the trooper’s statement for the
purposes of sentence enhancement; and (b) invited Petitioner to
file a joint application for a continuance so as to allow
Petitioner an opportunity to make inquiries about the trooper’s
That continuance was duly
sought and granted.
See id. Docket Entries dated March 1, 2013,
and April 18, 2013.
Neither the trooper’s statement nor his
internal investigation were raised during the sentencing stage.
On May 30, 2012, this Court sentenced Petitioner to a term
of seven years and one month, i.e., the period far shorter than
the sentencing maximum applicable to the firearms offense.
id., Docket Entry No. 17.
Petitioner’s judgment of conviction
was entered on May 31, 2013.
Nineteen months later, that is, on December 23, 2014,
Petitioner filed the within pleading.
Entry No. 1.
See Instant Matter, Docket
Here, he asserted that he did not commit the
underlying offense and pled guilty simply because he followed the
“ill advice” of his defense counsel.
Id. at 10.
To buttress his
newly minted claim of innocence, he alleged that he should have
been deemed “set up” by the trooper and even by the other
officers who were involved in his arrest simply because the
internal investigation of the trooper focused on the possibility
that the trooper falsified the charges during the events
unrelated to Petitioner.
See id. at 10-11.
Building on that
allegation, Petitioner now asserts that his rights were violated
because: (a) the Government did not withdraw the charge (to which
Petitioner already pled guilty to) immediately upon learning that
the trooper was subject to an internal investigation based on the
events unrelated to Petitioner; and (b) Petitioner’s counsel did
not make an application for such dismissal immediately upon
receiving the Government’s above-mentioned Brady disclosure.
Instant Matter, Docket Entry No. 1.
Cognizant of the untimeliness of his attack for the purposes
of Section 2255, Petitioner labeled his pleading “Petitioner for
Writ of Habeas Corpus 28[ §] U.S.C. 2241, Pursuant to [§]
2255[’s] Saving Clause Rule (E) and (H) Actual Innocence.”
Id. at 1 (capitalization of sub-sections in original).
Construction as a Section 2255 Motion
Section 2255 motions are subject to a one-year period of
limitation established by the Anti-Terrorism and Effective Death
See Kapral v. United States, 166
Penalty Act of 1996 (“AEDPA”).
F.3d 565, 567 (3d Cir. 1999).
The limitation period begins to
run on “the date on which the judgment of conviction becomes
28 U.S.C. §2255(f)(1).
If no appeal from the judgment
of conviction is taken, the judgment finalizes when the time for
filing a notice of appeal expires.
See United States v. Delgado,
363 F. App’x 853, 854 (3d Cir. 2010); Fed. R. App. P. 4(b)(1)(A)
(a defendant’s notice of appeal must be filed in the district
court within fourteen days after the entry of the judgment).
Here, Petitioner’s judgment of conviction was entered on May
31, 2013, and he did not file a direct appeal.
conviction became final fourteen days later, that is, on June 14,
His AEDPA’s one-year limitation period for filing a § 2255
motion was triggered on that date and expired on June 13, 2014,
i.e., more than half a year prior to December 23, 2014, i.e., the
date when he filed the pleading at bar.
Hence, absent a basis
for equitable tolling, his pleading is facially time-barred for
the purposes of § 2255.
And, since the pleading is wholly silent
as to any basis for equitable tolling, it is subject to dismissal
Even if this Court were to hypothesize that Petitioner, if
granted an opportunity to reflect on the untimeliness issue,
could assert a viable basis for equitable tolling, accord United
States v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005) (en banc) (a
habeas litigant must be availed to an opportunity to state his
grounds for equitable tolling, if any), Petitioner’s challenges
would still be deficient since they fall outside the scope of a §
2255 attack allowed to defendants convicted upon a guilty plea.
This is so because the defendant, convicted as a result of
his guilty plea, automatically forfeits claims beyond the plea.
In other words, such defendant’s § 2255 motion must be limited to
the attacks on nature of his plea or to the assistance of his
counsel provided in connection with the process of his entry of
that plea. See United States v. Broce, 488 U.S. 563, 569 (1989);
Mabry v. Johnson, 467 U.S. 504, 508-09 (1984); Tollett v.
Henderson, 411 U.S. 258, 267 (1973) (when a defendant has
unconditionally pled guilty, “he may . . . only attack the
voluntary and intelligent character of the guilty plea”); see
also Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Petitioner raises challenges to the events wholly unrelated to
the process of Petitioner’s entry of his guilty plea: he claims
that the Government should have withdrawn the charges against him
after he pled guilty and/or his defense counsel should have moved
for dismissal of that already-pled-guilty-to charge.
Matter, Docket Entry No. 1.
Indeed, Petitioner’s entire attack
on the pleading process is limited to his self-serving hindsight
observation that he followed his counsel’s “ill advice.”
That observation, however, neither establishes nor even
suggests that Petitioner’s plea was not knowing, intelligent and
Thus, even if Petitioner’s § 2255 challenges would
Where the defendant who pled guilty attacks his counsel’s
assistance in connection with that plea, his challenges merit
be timely, they would still be deficient for falling outside the
scope of § 2255 review because: (a) the Government’s election not
to withdraw the charge has no relation to whether Petitioner’s
plea was knowing, intelligent and voluntary; and (b) Petitioner’s
hindsight doubts as to the wisdom of his election to follow the
counsel’s advice cannot possibly render his plea unknowing,
unintelligent on involuntary.
“When assessing attorney
performance, courts should avoid the distorting effects of
hindsight and try to evaluate counsel’s conduct by looking at the
circumstances as they must have appeared to counsel at the time.”
Rodela-Aguilar v. United States, 596 F.3d 457, 461 (8th Cir.
relief only if he satisfies the two-prong test of Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Under the first prong,
he must show that his counsel’s performance fell below an
objective standard of reasonableness, see id. at 688; under the
second prong, he must establish prejudice caused by his counsel’s
deficient performance. See id. at 692-93; see also Knowles v.
Mirzayance, 556 U.S. 111 (2009). The latter means, generally,
that the defendant must show “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. But
where the defendant attacks his plea on the basis of his
counsel’s assistance, the prejudice inquiry “focuses on whether
counsel’s constitutionally ineffective performance affected the
outcome of the plea process. . . . [Hence,] the defendant must
show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 58-59 (1985)
(emphasis supplied); United States v. Orocio, 645 F.3d 630, 638
(3d Cir. 2011). Here, Petitioner’s pleading at bar does not
offer this Court even an inkling of the claim that Petitioner
would have insisted on going to trial.
2010); see also Strickland, 466 U.S. at 688 (same).
Petitioner’s § 2255 claims are deficient substantively.
If the foregoing were not enough, Petitioner’s claims are
also barred by his plea deal waiver.
Where a defendant executes
a broad waiver of his direct appellate and collateral-challenges
rights, that waiver is binding unless the defendant states an
ineffective assistance of counsel claim based specifically on the
counsel’s performance in connection with that waiver.
United States v. Hahn, 359 F.3d 1315, 1326 n.12 (10th Cir. 2004);
see also United States v. Corso, 549 F.3d 921, 931 (3d Cir.
Here, nothing in the pleading suggests that Petitioner’s
counsel’s performance in connection with his waiver was
In fact, the pleading is wholly silent as to the
Thus, the waiver conclusively bars Petitioner’s
collateral challenges, and his pleading is also subject to
dismissal on that ground.
In sum, under § 2255, Petitioner’s
claims are deficient both procedurally and substantively.4
Construction as a Section 2241 Habeas Petition
As noted supra, Petitioner, seemingly well aware of the
shortcomings of his pleading for the purposes of § 2255 analysis,
Correspondingly, to the extent Petitioner’s pleading
could be construed as a Section 2255 motion, it does not warrant
a certificate of appealability. See Miller-El v. Cockrell, 537
U.S. 322, 327 (2003) (the standard applicable to review of the
merits); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (the
standard applicable to review of procedurally deficient claims).
tried to escape a dismissal (based on the untimeliness, waiver
and his raising claims falling outside the scope allowed by §
2255 to the defendants who pled guilty) by re-styling his de
facto § 2255 motion into a Section 2241 habeas petition.
Instant Matter, Docket Entry No. 1, at 1.
attempt to disguise his § 2255 challenges into Section 2241 has
rendered his claims jurisdictionally deficient.
Petitioner aims to rely on two sub-sections of Section 2255.
(referring to § 2255's sub-sections “E” and “H,” which
this Court construes as references to sub-sections “e” and “h” in
light of the fact that Section 2255 has no sub-sections “E” and
These sub-sections provide as follows:
An application for a writ of habeas corpus in
behalf of a prisoner who is authorized to apply
for relief by motion pursuant to this section,
shall not be entertained if it appears that the
applicant has failed to apply for relief, by
motion, to the court which sentenced him, or that
such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.
. . .
A second or successive motion must be certified as
provided in section 2244 by a panel of the
appropriate court of appeals to contain –
newly discovered evidence that, if proven and
viewed in light of the evidence as a whole,
would 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
28 U.S.C. § 2255 (e), (h).
Petitioner’s reliance on these sub-sections is misplaced.
Sub-section “e,” popularly known as the “safety valve,” cannot
aid Petitioner in his attempt to establish § 2241 jurisdiction.
A motion filed under § 2255 is the presumptive means for a
federal prisoner to challenge the validity of a conviction or
See Okereke v. United States, 307 F.3d 117, 120 (3d
By contrast, § 2241 “confers habeas jurisdiction to
hear the petition of a federal prisoner who is challenging not
the validity but the execution of his sentence.” Coady v. Vaughn,
251 F.3d 480, 485-86 (3d Cir. 2001).
Here, Petitioner’s claims are attacks on the validity of his
conviction and, as such, they presumptively fall within § 2255.
True, in certain - albeit very narrow - circumstances, a federal
prisoner can seek relief under § 2241, but only if the remedy
provided by § 2255 is inadequate or ineffective to test the
legality of his detention. See In re Dorsainvil, 119 F.3d 245,
249-51 (3d Cir. 1997).
However, “Section 2255 [does not become]
inadequate or ineffective merely because the sentencing court
does not grant relief, the one-year statute of limitations has
expired, or the petitioner is unable to meet the stringent
gatekeeping requirements of the amended § 2255.”
Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam).
the “safety valve” provided under § 2255 is extremely narrow and
has been held to apply only in unusual situations, such as those
in which a prisoner has had no prior opportunity to challenge his
conviction for actions later deemed to be non-criminal by an
intervening change in law, which might come about as a result of
a Supreme Court ruling finding a penal provision inapplicable to
a certain conduct or an outright legislative repeal of a penal
See Okereke, 307 F.3d at 120 (citing In re Dorsainvil,
119 F.3d at 251).
Here, such unique scenario is not present.
No Supreme Court
ruling found that the act of an illegal possession of – or
illegal commerce in – a firearm is a non-criminal conduct.
no legislative enactment has repealed the penal statute under
which Petitioner was convicted.
Thus, the acts underlying
Petitioner’s conviction remain as much a crime today as they were
on the day he pled guilty (or was charged with those acts).
Hence, the “safety valve” of Section 2255 is wholly inapplicable
Petitioner’s attempt to rely on sub-section “h” fares even
Since: (a) Petitioner attempts to invoke § 2241
First, sub-section “h” does not allow for resort to
Section 2241: an application submitted under that sub-section
jurisdiction and escape the reach of § 2255; (b) Petitioner has
not made any prior § 2255 motion, and – even now – he aims to
avoid qualifying his instant pleading as a § 2255 motion; (c)
this Court is the trial court; (d) the Brady-based evidence upon
which Petitioner relies was available to him right after his plea
and before his sentencing, that is, for since January 3, 2013,
and, in addition, that evidence cannot possibly qualify as
establishing Petitioner’s innocence (and, a fortiori, as
establishing his innocence clearly and convincingly); and (e)
there has been no retroactively applicable Supreme Court decision
which Petitioner might be able to invoke, sub-section “h” is
wholly inapposite to this matter.
remains a § 2255 motion. Second, sub-section “h” applies only to
second/successive § 2255 motions, i.e., those motions that were
filed after the original § 2255 motion was made and resolved on
the merits. Third, an application to file such second/successive
§ 2255 motion – and, hence, the power to grant that application –
is an exclusive function of the circuit court of appropriate
jurisdiction, and no district court has the mandate to usurp that
function: at most, the district court may forward an incorrectly
filed application to the circuit court for the circuit court’s
independent consideration in the event the district court finds
such forwarding in the interest of justice. Finally, the circuit
court has the power to grant leave to file a second/successive §
2255 motion only if the circuit court finds that the application
is based on newly discovered, clear and convincing evidence (that
would allow no reasonable juror to find that the defendant
committed the offense of which he was convicted) or that the
application is based on Supreme Court precedent that was not
available to the defendant at the time of his conviction but
became retroactively applicable to the defendant’s underlying
conduct after his original § 2255 motion was already ruled upon.
Consequently, this Court is constrained to dismiss the
pleading in the event it is construed as labeled on its face,
i.e., as a Section 2241 habeas petition, for lack of
For the foregoing reasons, the pleading will be dismissed.
To the extent it could imply Section 2241 challenges, those
challenges will be dismissed for lack of jurisdiction.
extent the true nature of Petitioner’s challenges could be
distilled, and those challenges could be assessed accordingly:
(a) Petitioner’s pleading is deemed an attempt to raise Section
2255 claims, and those claims will be dismissed as untimely,
falling outside the scope of § 2255 review afforded to Petitioner
in light of his plea and, in addition, as barred by his waiver;
and (b) no certificate of appealability will issue.
However, mindful of the Court of Appeals’ teaching that the
Court should not sua sponte construe a pleading as a Section 2255
application without affording the litigant an opportunity to
object to such construction and, hence, to avoid commencement of
§ 2255 proceeding, see Castro v. United States, 540 U.S. 375, 383
(2003) (the court cannot sua sponte recharacterize an expressly
Correspondingly, this Court finds it warranted to dispense
with collection of $5 filing fee that would have been applicable
to this matter had it been a bona fide § 2241 habeas petition.
labeled § 2241 ground as a motion to vacate the judgment without
notifying the litigant of the consequences of recharacterization
and providing him an opportunity to withdraw the motion or to
amend it so that it contains all the § 2255 claims he believes he
this Court will: (a) retain its jurisdiction over this
matter for the period of ninety days; and (b) direct Petitioner
to state, in writing, whether he wishes to withdraw the instant
matter or proceed with this case as his Section 2255 action.7
In the event Petitioner elects to proceed with a § 2255
action, he would have to show cause, in writing, as to why his
challenges should not be dismissed as facially untimely. See
Bendolph, 409 F.3d at 169. If Petitioner’s written statement
details a viable basis for equitable tolling, that statement
should also marshal all Petitioner’s challenges, see United
States v. Miller, 197 F. 3d 644 (3d Cir. 1999), albeit those
challenges should be limited to, and only to, his attack(s) on
the knowing, voluntary and intelligent nature of his plea and
waiver, and/or his counsel’s assistance solely in connection with
the process of that plea and waiver. Toward that end, this Court
reminds Petitioner that self-serving bold assertions (e.g., to
the effect that Petitioner’s plea and/or waiver were or must be
deemed not knowing, voluntary and intelligent) cannot suffice.
Rather, Petitioner is obligated to meticulously detail the actual
facts establishing that plea and/or waiver were not knowing,
voluntary and intelligent.
“Habeas corpus petitions must meet heightened pleading
requirements,” McFarland v. Scott, 512 U.S. 849, 856
(1994), and Habeas Rule 2(c) requires a petitioner to
“state the facts supporting each ground.” 28 U.S.C. §
2254 Rule 2(c)(2) . . . . [Thus, Petitioner must]
detail the legal challenge and supporting factual
predicate of each claim . . . .
Jones v. United States, 2014 U.S. Dist. LEXIS 101272, at *2-4
(D.N.J. July 24, 2014) (reflecting on the principles applicable
to all habeas applications, including § 2255 motions, through
Habeas Rule 1(b)).
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 6, 2015
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