SCURRY v. UNITED STATES OF AMERICA

Filing 7

MEMORANDUM AND ORDER denying 6 Motion FOR NUNC PRO TUNC TO CORRECT ORDER OF FEBRUARY 6, 2015; ORDERED that the Clerk shall administratively terminate this matter. Such termination shall be subject to reopening in the event Pltf timely submits a writing, within 30 days, stating Petitioner wishes this matter to proceed under Section 2255 or alternatively submits a written statement that he wishes to withdraw this petition, etc. Signed by Judge Renee Marie Bumb on 5/11/2015. (dmr)(n.m.)

NOT FOR PUBLICATION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)

MEMORANDUM AND ORDER

BUMB, District Judge
This matter comes before the Court upon Petitioner’s
submission, on December 22, 2014, of a petition under 28 U.S.C.
§ 2241. (Petition, ECF No. 1.) Petitioner is a federal inmate
confined at U.S.P. Canaan in Waymart, PA. (Id.) Petitioner
labeled his petition as arising under 28 U.S.C. § 2241. (Id.)
On February 6, 2015, however, this Court construed the petition
as arising under 28 U.S.C. § 2255, and dismissed it without
prejudice, allowing Petitioner to state in writing whether he
wished to withdraw the instant matter (in other words not go
forward with his first, albeit time-barred, § 2255 motion or
proceed with this case as his Section 2255 action. (Opinion, ECF
No. 3 at 14-15.) Insofar as the filing was purported under 28

U.S.C. § 2241, this Court dismissed the claims because it lacked
jurisdiction. (Order, ECF No. 4.) Proceeding under § 2241 was
not an option Petitioner was given.
On March 12, 2015,1 this Court received Petitioner’s written
submission in response to the Court’s February 6, 2015 Opinion
and Order. (Petitioner’s Submission Pursuant to District Court
Order of February 6th, 2015 (“Petr’s Sub.”), ECF No. 5.) Rather
than responding to the question of whether he wished to withdraw
the instant matter or proceed with this case as his Section 2255
action, Petitioner again asserted that he should be allowed to
proceed under § 2241 based on the savings clause of § 2255.
(Petr’s Sub. at 3.) The Court will treat Petitioner’s filing as
a motion for reconsideration of its prior Order pursuant to
Local Rule 7.1(g), and grant the motion in form and deny it in
substance.
On February 6, 2015, this Court addressed the merits of
Petitioner’s argument that the savings clause applied to his
claim of actual innocence, under 28 U.S.C. § 2255(e) and (h).

1

On February 14, 2014, Petitioner filed a “Motion for Nunc Pro
Tunc to Correct Order of February 6th, 2015, Pursuant to
[F.R.AP.P.] Rule 4(b) Based on Excusable “Neglect” (ECF No. 6.)
It appears that Petitioner seeks to have the Court accept his
submission, received by the Court on March 12, 2015, as timely
because he mailed the submission to the Court by certified mail
on March 6, 2015, within the allotted thirty days he was given.
The Court will accept and address Petitioner’s submission,
although his motion will be denied because this District Court
is not governed by the Federal Rules of Appellate Procedure.
2

(Opinion at 9-14.) First, the Court found that Petitioner’s
claims were attacks on the validity of his sentence that should
have been raised under § 2255, but Petitioner was barred by the
statute of limitations and by his plea deal waiver from seeking
relief under § 2255. (Id. at 6-9.)
Second, the Court found that the narrow “safety valve”
provision of under § 2255 was not applicable because there was
no Supreme Court ruling that found Petitioner’s illegal
possession of, or illegal commerce in, a firearm was noncriminal conduct. (Id. at 12.) Third, this Court found
Petitioner could not proceed under the safety valve pursuant to
28 U.S.C. § 2255(h) because such provision allows a petitioner
to seek permission from the Court of Appeals, not the District
Court, to file a second 2255 motion by alleging sufficient facts
to show actual innocence. (Id. at 12-14.) Nothing in
Petitioner’s Submission changes any prior finding by this Court
in this matter. Therefore, the matter will be dismissed.
IT IS, therefore, on this 11th day of May 2015,
ORDERED that the Clerk shall reopen this matter; and it is
further
ORDERED that Petitioner’s submission, while accepted as
timely and granted in form as a motion for reconsideration of
this Court’s February 6, 2015 Order, it is denied on the merits;
and it is further
3

ORDERED that Petitioner’s “Motion for Nunc Pro Tunc to
Correct Order of February 6th, 2015, Pursuant to [F.R.AP.P.]
Rule 4(b) Based on Excusable “Neglect” (ECF No. 6) is denied;
and it is
ORDERED that the Clerk administratively terminate this
matter by making a new and separate entry reading, “CIVIL CASE
TERMINATED.”

Such termination shall be subject to reopening in

the event Plaintiff timely submits a writing, within thirty days
of the date of this Memorandum and Order, stating Petitioner
wishes this matter to proceed under Section 2255 or
alternatively submits a written statement that he wishes to
withdraw this petition as arising under Section 2255 (in other
words, Petitioner does not intend the Court to construe it under
§ 2255, knowing that this Court has dismissed the petition under
§ 2241 for lack of jurisdiction);2 and no statement in this

2

As this Court noted in its Opinion and Order dated February 6,
2015, in the event Petitioner elects to proceed with a § 2255
action, he would have to show cause, in writing, as to why his
challenge should not be dismissed as facially untimely. See U.S.
v. Bendolph, 409 F.3d 155, 169 (3d Cir. 2005). 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 bald
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
4

Memorandum and Order shall be construed as withdrawal of this
Court’s jurisdiction over this matter under § 2255; and it is
further
ORDERED that the Clerk shall serve this Memorandum and
Order upon Plaintiff by regular U.S. Mail.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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)).
5