ABEYOME v. UNITED STATES OF AMERICA
Filing
9
OPINION. Signed by Judge Joseph H. Rodriguez on 11/1/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HASSAN ABEYOME,
HON. JOSEPH H. RODRIGUEZ
Petitioner,
Civil Action
No. 16-8187 (JHR)
v.
UNITED STATES OF AMERICA,
OPINION
Respondent.
APPEARANCES:
HASSAN ABEYOME
#40859-050
Federal Correctional Institution - Fairton
P.O. Box 420
Fairton, New Jersey 08320
Pro Se Petitioner
JACQUELINE CARLE, Esq.
United States Attorney’s Office
401 Market Street, 4th Floor
Camden, New Jersey 08101
Attorney for Respondent United States of America
RODRIGUEZ, Senior District Judge:
I.
INTRODUCTION
Presently before the Court is the pro se Motion to Vacate, Set Aside, or
Correct Sentence, pursuant to 28 U.S.C. § 2255, filed by Petitioner Hassan
Abeyome (the “§ 2255 Motion”). (ECF No. 1.) For the reasons stated herein, the
Court will deny Petitioner’s § 2255 Motion and will not issue a certificate of
appealability.
II.
BACKGROUND
i. Petitioner’s Plea and Sentencing
On August 2, 2012, Petitioner pleaded guilty to one count of possession of
crack cocaine with intent to distribute, in violation of 21 U.S.C. §§ 84l(a)(1) and
841(b)(1)(C). (See, e.g., Apr. 15, 2013 Crim. J. in United States v. Abeyome, Crim.
Action No. 1:12-cr-520 (JHR) (the “Criminal Docket”) at ECF No. 38.) As part of
his underlying plea agreement, Petitioner expressly acknowledged “[having] at
least two prior felony convictions of either a crime of violence or a controlled
substance offense” for purposes of designating him as “a Career Offender pursuant
to [United States Sentencing Guideline (“USSG”)] § 4B1.1.” (See July 10, 2012
Plea Agreement, Criminal Docket at ECF No. 34, PageID: 81.)
At sentencing, the Court agreed that Petitioner was appropriately designated
as a career offender. (See, e.g., Apr. 11, 2013 Sentencing Hr’g Tr. 5-6, Criminal
Docket at ECF No. 40.) The record conclusively shows that Petitioner’s career
offender designation was supported by multiple criminal convictions, including,
inter alia, three separate felony convictions for controlled dangerous substance
(“CDS”) offenses which Petitioner committed on October 9, 1993, January 11,
1994, and February 4, 2003. (See Presentence Investigation Report (“PSR”) at ¶¶
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34-67; accord Apr. 11, 2013 Sentencing Hr’g Tr. 3-5.) As a career offender,
Petitioner faced an advisory Guideline range of 151-188 months’ imprisonment.
(See Apr. 11, 2013 Sentencing Hr’g Tr. 6.) That range was reduced to 100-125
months’ imprisonment pursuant to USSG § 5K1.1. (Id. at 8.) The Court
ultimately imposed a 100-month sentence. (See Apr. 15, 2013 Crim. J.)
Petitioner appealed that sentence to the United States Court of Appeals for
the Third Circuit on April 23, 2013. (See Criminal Docket at ECF No. 40.) The
Third Circuit summarily dismissed that appeal “[i]n accordance with the agreement
of the parties” on or about September 6, 2013. (Id. at ECF No. 41.) Petitioner has
not further pursued any direct appeal, nor has Petitioner previously filed a motion
to vacate his sentence pursuant to 28 U.S.C. § 2255.
ii. Johnson v. United States, 135 S. Ct. 2551 (2015)
On June 26, 2015, the United States Supreme Court struck down the residual
clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague. 1
Johnson v. United States, 135 S. Ct. 2551 (2015). On April 18, 2016, the Supreme
Court expressly held that Johnson retroactively applies to cases on collateral
review. Welch v. United States, 136 S. Ct. 1257 (2016).
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“The residual clause [at issue in Johnson] defined a crime as a ‘violent felony’ if
it ‘otherwise involves conduct that presents a serious potential risk of physical
injury to another.’” In re Hoffner, 870 F.3d 301, 303 (3d Cir. 2017) (quoting 18
U.S.C. § 924(e)(2)(B)(ii)).
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iii. Petitioner’s § 2255 Motion
Petitioner filed his § 2255 Motion on October 31, 2016.2 (ECF No. 1.)
Petitioner asserts that he is entitled to habeas relief because he was improperly
designated as a career offender. Petitioner – without acknowledging that this
designation is supported by three separate felony CDS convictions – argues only
that “[f]ollowing Johnson, [his additional November 21, 2003] conviction for
aggravated assault under New Jersey law does not qualify as a predicate offense
[for purposes of designating him as a career offender under USSG § 4B1.1].” (Id.
at PageID: 18.) This is the lone habeas claim raised by Petitioner.
iv.
The Government’s Opposition to the § 2255 Motion
The Government argues that Petitioner’s § 2255 Motion should be denied
because, inter alia: (1) it is untimely; and (2) regardless of whether Petitioner’s
2003 aggravated assault conviction is a crime of violence under USSG § 4B1.1,
Petitioner was properly sentenced as a career offender in light of Petitioner’s three
additional and separate CDS convictions. (See July 19, 2018 Answer, ECF No. 8.)
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October 31, 2016 is the date on which Petitioner executed his § 2255 Motion.
(See ECF No. 1 at PageID: 13.) Under the federal prisoner mailbox rule, “a
document is deemed filed on the date it is given to prison officials for mailing.”
Pabon v. Mahanoy, 654 F.3d 385, 391 n. 8 (3d Cir. 2011). The Court, affording
Petitioner all favorable inferences, finds that October 31, 2016 represents the
operative filing date of Petitioner’s § 2255 Motion.
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III. STANDARD OF REVIEW
Section 2255 provides, in relevant part, that:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States . . . may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
28 U.S.C. § 2255(a).
A district court must hold an evidentiary hearing on a § 2255 motion unless
the “motion and the files and records of the case conclusively show” that the
movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v.
Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). Here, the record conclusively
demonstrates that Petitioner is not entitled to relief.
IV. ANALYSIS
i. Petitioner’s § 2255 Motion is Untimely
Motions brought pursuant to 28 U.S.C. § 2255 are subject to a one-year
statute of limitations. 28 U.S.C. § 2255(f). This limitation period begins to run at
the latest of the following events: (1) the date on which the conviction becomes
final; (2) the date on which an impediment to making the motion is removed; (3)
the date on which a right made retroactively applicable to cases on collateral
review was initially recognized by the Supreme Court; or (4) the date on which the
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facts supporting the claim could first have been discovered through due diligence.
28 U.S.C. § 2255(f)(l)-(4).
Petitioner asserts that his § 2255 Motion is timely under 28 U.S.C. §
2255(f)(3) only. (ECF No. 1 at PageID: 11.) Section 2255(f)(3), in turn, provides
that a motion seeking relief under § 2255 is timely if it is filed within one year
from “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.” 28 U.S.C. § 2255(f)(3).
The limitations period under this provision begins on the date of the Supreme
Court decision initially recognizing the right, and not the date of any decision that
thereafter makes the right retroactively applicable to cases on collateral review.
See Dodd v. United States, 545 U.S. 353, 357 (2005) (“An applicant has one year
from the date on which the right he asserts was initially recognized by this
Court.”); accord United States v. Green, 898 F.3d 315, 318 (3d Cir. 2018).
Here, it is undisputed that Petitioner filed his § 2255 Motion on October 31,
2016, i.e., well over one-year after the Supreme Court issued its Johnson opinion
on June 26, 2015. Thus, on its face, Petitioner’s § 2255 Motion is untimely under
28 U.S.C. § 2255(f)(3). Dodd, 545 U.S. at 357-58; Green, 898 F.3d at 318;
Lindsay v. United States, No. 16-3281, 2016 WL 6469297, at *5 (D.N.J. Nov. 1,
2016).
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Further, although the statute of limitations applicable to § 2255 motions is
subject to equitable tolling, reliance on that remedy “should be invoked ‘only
sparingly.’” United States v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting
United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). In order to receive
equitable tolling, Petitioner must “show (1) that he faced ‘extraordinary
circumstances that stood in the way of timely filing,’ and (2) that he exercised
reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir.
2014) (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Mere
excusable neglect is insufficient. United States v. Thomas, 713 F.3d 165, 174 (3d
Cir. 2013).
Petitioner attributes the late filing of his pro se § 2255 Motion to his
mistaken belief that the Office of the Public Defender would be filing that motion
on his behalf. (ECF No. 1 at PageID: 11-12.) This assertion fails to provide a
basis to equitably toll Petitioner’s otherwise untimely-filed § 2255 Motion. To the
extent the Public Defender was still representing Petitioner – and such a claim is of
dubious validity given that Petitioner ultimately filed his habeas motion pro se –
his “attorney’s delinquency is chargeable to [Petitioner] and is not a basis for
equitable tolling.” Cristin v. Wolfe, 168 F. App’x 508, 511 (3d Cir. 2006). To the
extent Petitioner was unrepresented by counsel, he has failed to demonstrate that
he himself was reasonably diligent. The Court will therefore deny Petitioner’s §
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2255 Motion as time-barred. Moreover, for the reasons set forth below,
Petitioner’s § 2255 Motion also fails on the merits, and would still be denied even
were it timely brought.
ii. Petitioner’s Johnson Argument
Petitioner claims that “[f]ollowing Johnson, [Petitioner‘s November 21,
2003] conviction for aggravated assault . . . does not qualify as a predicate offense”
for purposes of designating Petitioner as a career offender under USSG § 4B1.1.
(ECF No. 1 at PageID: 18.) This argument – which is premised on the factually
incorrect notion that but-for Petitioner’s 2003 aggravated assault conviction, he
would not have been designated as a career offender – fails to provide a basis to
grant Petitioner habeas relief.
The 2011 Sentencing Guidelines, i.e., the version of the Guidelines utilized
by the Court at Petitioner’s sentencing (see PSR at p. 4), provide that “[a]
defendant is a career offender if . . . the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n Nov. 2011)
(emphasis added). The record makes clear that aside from his November 21, 2003
conviction for aggravated assault, Petitioner also had three additional felony
convictions stemming from separate CDS offenses which he committed on
October 9, 1993, January 11, 1994, and February 4, 2003. (See PSR ¶¶ 32, 34, 56).
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The record therefore makes clear that Petitioner was properly designated as a
career offender pursuant to USSG § 4B1.1(a) because he had “at least two prior
felony convictions of . . . a controlled substance offense.” This fact remains true
regardless of whether Petitioner’s additional 2003 aggravated assault conviction
could also serve as a career offender predicate offense.
In light of the foregoing, Johnson – and the specific “crime of violence”
residual clause implicated by Johnson, i.e., USSG § 4B1.2(a)(2) – does not provide
a basis for this Court to grant habeas relief to Petitioner. As such, and for the
additional reasons detailed above, Petitioner’s § 2255 Motion will be denied.
iii. Certificate of Appealability
A petitioner may not appeal “the final order in a proceeding under Section
2255” unless he has “made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(1)(B), (2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude that the issues
presented here are adequate to deserve encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). For the reasons expressed above,
Petitioner has failed to make a substantial showing that he was denied a
constitutional right. As jurists of reason could not disagree with this Court's
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resolution of Petitioner’s § 2255 Motion, the Court denies Petitioner a certificate of
appealability.
V.
CONCLUSION
For the reasons set forth above, Petitioner’s Motion to Vacate, Correct, or
Set Aside his sentence is denied. No certificate of appealability shall issue. An
accompanying Order will be entered.
November 1, 2018
Date
s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S. District Judge
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