CLARK v. UNITED STATES OF AMERICA

Filing 8

OPINION FILED. Signed by Judge Noel L. Hillman on 3/19/18. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
JEREL CLARK,
:
:
Petitioner,
:
Civ. No. 17-1674 (NLH)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA
:
:
Respondent.
:
______________________________:
APPEARANCES:
Jerel Clark, No. 64516-050
FCI - Gilmer
P.O. Box 6000
Glenville, WV 26351
Petitioner Pro se
Diana Vondra Carrig, Esq.
Office of the U.S. Attorney
401 Market Street, 4th Floor
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
Petitioner Jerel Clark (“Petitioner”), a prisoner presently
incarcerated at the Federal Correctional Institution at Gilmer
in Glenville, West Virginia, filed a Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255 (the “§ 2255
Motion”).

ECF No. 1.

to his § 2255 Motion.

Petitioner also filed a brief supplement
ECF No. 6.

Respondent filed an Answer to

the § 2255 Motion along with a Memorandum of Law, raising, inter
alia, the timeliness of the § 2255 Motion.
Petitioner did not file a reply.

ECF No. 7.

For the reasons that follow,

the § 2255 Motion will be dismissed with prejudice, because the
petition is time barred.
I. BACKGROUND
On October 2, 2012, Petitioner was charged by criminal
complaint with conspiracy to distribute and possess with intent
to distribute over 500 grams of cocaine in violation of 21
U.S.C. 846.

No. 13-cr-508, ECF No. 1.

Petitioner entered into

a plea agreement on April 11, 2013, in which Petitioner agreed
to plead guilty to a one count information, which charges
Petitioner with unlawful possession of a firearm in violation of
18 USC 922(g)(1) and 2.
Agreement.

No. 13-cr-508, ECF No. 16, Plea

The plea agreement contained an appellate and

collateral review waiver.

No. 13-cr-508, ECF No. 16, Sch. A, ¶

9 (“this Office and Jarel Clark waive certain rights to file an
appeal, collateral attack, writ or motion after sentencing,
including but not limited to an appeal under 18 U.S.C. § 3742 or
a motion under 28 U.S.C. § 2255”).
Pursuant to the plea agreement, Petitioner was so charged
by information and pled guilty to one count of unlawful
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
No. 13-cr-508, ECF Nos. 13 (information), 15 (minute entry for
plea hearing).

During his plea hearing, Petitioner executed an

“Application for Permission to Enter Plea of Guilty,” in which,
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inter alia, Petitioner confirmed that he understood that his
plea agreement waives his right to appeal or collaterally attack
his sentence.

No. 13-cr-508, ECF No. 17 at 6.

On December 17, 2013, the Court conducted a sentencing
hearing as to Petitioner’s guilty plea and sentenced him to 84
months’ imprisonment.

No. 13-cr-508, ECF Nos. 18 (minute

entry), 19 (judgment of conviction).

Petitioner did not appeal

his judgment of conviction or sentence.
Almost four years after Petitioner was sentenced,
Petitioner file the instant § 2255 Motion on March 13, 2017.
ECF No. 1.

In the § 2255 Motion, Petitioner relies on Mathis v.

United States, 136 S. Ct. 2243 (2016), for both his grounds for
relief as well as the timeliness of his § 2255 Motion.
No. 1.

See ECF

In the § 2255 Motion, Petitioner does not challenge the

knowing and voluntariness of his guilty plea and plea agreement.
II. STANDARD OF REVIEW
Title 28, § 2255 of the United States Code provides, in
pertinent part:
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, or that the court was without
jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate,
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set aside or correct the sentence.
28 U.S.C. § 2255(a).

See generally United States v. Thomas, 713

F.3d 165 (3d Cir. 2013) (detailing the legislative history of §
2255).
A criminal defendant bears the burden of establishing his
entitlement to § 2255 relief.

See United States v. Davies, 394

F.3d 182, 189 (3d Cir. 2005).

Moreover, as a § 2255 motion to

vacate is a collateral attack on a sentence, a criminal
defendant “must clear a significantly higher hurdle than would
exist on direct appeal.”

United States v. Frady, 456 U.S. 152,

166 (1982).
Finally, this Court notes its duty to construe pro se
pleadings liberally.

See United States v. Otero, 502 F.3d 331,

334 (3d Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).
III. DISCUSSION
A. Timeliness
Petitioner’s § 2255 Motion must be dismissed as untimely
because it has been brought more than a year after his sentence
became final, and Petitioner had notice and an opportunity to
respond to the issue of timeliness. 1

1

The Court notes that even if Petitioner’s § 2255 Motion were
timely, those claims in his Motion that do not raise
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Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), motions filed pursuant to 28 U.S.C. § 2255 are
subject to a one-year statute of limitations.
2244(d), 2255(f)(1).

See 28 U.S.C. §§

Specifically, the one-year limitation

period runs from the latest of:
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
constitutionally ineffective assistance of counsel issues
(Grounds 1-4) would still be dismissed as precluded by the
collateral attack waiver contained in his Plea Agreement, a
waive Petitioner acknowledged when the Court accepted
Petitioner’s guilty plea. See No. 13-cr-508, ECF Nos. ECF No.
16, Sch. A, ¶ 9; 17 at 6. Although not barred by the collateral
attack bar in his plea agreement because it can be construed to
allege constitutionally ineffective assistance of counsel,
Ground 5 is without merit. Ground 5 alleges Petitioner’s
counsel should have challenged his designation as a career
offender by questioning one or more of the predicate offenses.
Although the Court determined Petitioner was a Career Offender
pursuant to U.S.S.G. § 4B1.2, that finding did not affect
Petitioner’s advisory guideline range (which in any event the
Court varied downward from). First, despite the career offender
designation, Petitioner’s offense level of 23 was based solely
upon his offense conduct and not the career offender guideline.
The base offense level for the count of conviction was a 26, two
points higher than the career offender base offense level (24).
As for the second prong of a potential career offender
enhancement, Petitioner’s 21 criminal history points placed him
squarely in Criminal History Category VI without any enhancement
pursuant to the Career Offender Guideline. Plainly, any
challenge to whether certain prior offenses qualified as
predicate offenses, even if successful, would have not changed
Petitioner’s sentence.
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(3) 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; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2255(f).
Here, Petitioner’s judgement of conviction was entered on
December 18, 2013.

Petitioner did not file a direct appeal of

his conviction or sentence.

When a defendant “does not pursue a

timely direct appeal to the court of appeals,” his conviction
becomes final within the meaning of § 2255(f)(1), and the oneyear statute of limitations beings to run, “on the date on which
the time for filing such an appeal expired.”
States, 166 F.3d 565, 577 (3d Cir. 1999).

Kapral v. United

For Petitioner, his

conviction and sentence became final on January 2, 2014. 2

See

Fed. R. App. P. 4(b)(1)(A)(i) (providing fourteen days in which
a criminal defendant must file a notice of appeal after the
entry of judgment).

The time in which Petitioner had to file a

timely § 2255 Motion pursuant to § 2255(f)(1) expired on January

2

The fourteen-day period in which to appeal would expire on
January 1, 2014. The Court takes judicial notice that January
1, 2014, was observed to be a legal, federal holiday; thus,
pursuant to Federal Rule of Appellate Procedure 26(a)(1)(C), the
expiration of the appeals period is extended an extra day to
January 2, 2014.
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2, 2014.

Petitioner’s § 2255 Motion is thus untimely under §

2255(f)(1).
Petitioner asserts that his § 2255 Motion is timely under §
2255(f)(3), which provides for an additional year to bring a
claim asserted under a retroactively applied right recognized by
the Supreme Court of the United States.

In support of his

argument, Petitioner cites Mathis v. United States, 136 S. Ct.
2243 (2016), as triggering a new one-year limitations period.
Petitioner’s argument fails because Mathis did not announce a
new rule that would trigger § 2255(f)(3)’s statute of
limitations.

See Mathis, 136 S. Ct. at 2257 (“Our precedents

make this a straightforward case.

For more than 25 years, we

have repeatedly made clear that application of ACCA involves,
and involves only, comparing elements.”); see, e.g., Dawkins v.
United States, 829 F.3d 549, 551 (7th Cir. 2016) (“Mathis did
not announce such a rule.”); United States v. Taylor, 672 F.
App’x 860, 862-63 (10 Cir. 2016) (“Mathis did not announce a new
rule.”); Jackson v. Kirby, No. 17-cv-4651, 2017 WL 3908868, at
*1, n.1 (D.N.J. Sept. 6, 2017) (noting that neither the Supreme
Court nor the Third Circuit Court of Appeals has held that
Mathis is retroactively applicable on collateral review); United
States v. Gadsden, No. 09-305, 2017 WL 6316566 at *2, 2017 U.S.
Dist. LEXIS 202795 at *6 (W.D. Pa. Dec. 11, 2017) (“there is
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nothing ‘new’ about Mathis”).

Because Mathis does not trigger a

new limitations period under § 2255(f)(3), Petitioner’s § 2255
Motion remains untimely under § 2255(f)(1) and must be
dismissed.
B. Tolling
As set forth above, the § 2255 Motion is time-barred unless
Petitioner can demonstrate extraordinary circumstances to
justify equitable tolling of the limitations period.

In Holland

v. Florida, the Supreme Court held that AEDPA's one-year
limitations period is subject to equitable tolling in
appropriate cases, on a case-by-case basis.
50 (2010).
2013).

560 U.S. 631, 649–

See Ross v. Varano, 712 F.3d 784, 798 (3d Cir.

A litigant seeking equitable tolling bears the burden of

establishing two elements: “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way.”

Holland, 560 U.S. at 649 (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)).

See also United States

v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013); Jenkins v.
Superintendent of Laurel Highlands, 705 F.3d 80, 89 (3d Cir.
2013).
The diligence required for equitable tolling is reasonable
diligence, not maximum, extreme, or exceptional diligence.
Holland, 560 U.S. at 653.

Reasonable diligence is examined
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under a subjective test, and it must be considered in light of
the particular circumstances of the case.

See Ross, 712 F.3d at

799; Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due
diligence does not require the maximum feasible diligence, but
it does require diligence in the circumstances.”) (internal
quotation marks and citations omitted).
The court also must determine whether extraordinary
circumstances exist to warrant equitable tolling.

“[G]arden

variety claim[s] of excusable neglect” by a petitioner's
attorney do not generally present an extraordinary circumstance
meriting equitable tolling.
omitted).

Holland, 560 U.S. at 651 (citations

Cir. 2003).

See also Merritt v. Blaine, 326 F.3d 157, 168 (3d
Rather, equitable tolling can be triggered only

when “the principles of equity would make the rigid application
of a limitation period unfair, such as when a . . . prisoner
faces extraordinary circumstances that prevent him from filing a
timely habeas petition and the prisoner has exercised reasonable
diligence in attempting to investigate and bring his claims.”
LaCava v. Kyler, 398 F.3d 271, 275–276 (3d Cir. 2005).

See also

Holland, 560 U.S. at 648–49 (relying on Pace, 544 U.S. at 418);
Jenkins, 705 F.3d at 89 (holding that equitable tolling should
be applied sparingly and only when the “principles of equity
would make the rigid application of a limitation period
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unfair”).
Indeed, extraordinary circumstances have been found only
where (a) the respondent has actively misled the plaintiff, (b)
the petitioner has in some extraordinary way been prevented from
asserting his rights, (c) the petitioner has timely asserted his
rights mistakenly in the wrong forum, or (d) the court itself
has misled a party regarding the steps that the party needs to
take to preserve a claim.
230 (3d Cir. 2005).

See Brinson v. Vaughn, 398 F.3d 225,

Nevertheless, it must be restated that,

even where extraordinary circumstances do exist, “if the person
seeking equitable tolling has not exercised reasonable diligence
in attempting to file after the extraordinary circumstances
began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the
extraordinary circumstances therefore did not prevent timely
filing.”

Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003)

(quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)).
Here, Petitioner has offered no explanation for the delay in
bringing his federal habeas petition which would allow this
Court to consider equitable tolling.

Accordingly, the § 2255

Motion will be dismissed as untimely.
IV. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice
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or judge issues a certificate of appealability, an appeal may
not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254.

A certificate of appealability may issue “only if the

applicant has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(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 the issues
presented are adequate to deserve encouragement to proceed
further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Here, Petitioner has failed to make a substantial showing
of the denial of a constitutional right.

Thus, no certificate

of appealability shall issue.
V.

CONCLUSION
For the foregoing reasons, the § 2255 Motion is dismissed

without prejudice as untimely.

See 28 U.S.C. § 2255(f).

An appropriate Order will follow.

Dated: March 19, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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