GARRETT v. UNITED STATES OF AMERICA
Filing
50
OPINION. Signed by Judge Jerome B. Simandle on 5/6/2019. (rss, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALAN D. GARRETT,
Petitioner,
HONORABLE JEROME B. SIMANDLE
Civil Action
No. 17-3254 (JBS)
v.
[Crim. No. 11-242 (JBS)]
UNITED STATES OF AMERICA,
Respondent.
OPINION
APPEARANCES:
Alan D. Garret, Petitioner pro se
#63176050
Schuylkill
Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 759
Minersville, PA 17954
Sara Aliya Aliabadi, Assistant United States Attorney
OFFICE OF THE U.S. ATTORNEY FOR THE DISTRICT OF NEW JERSEY
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for Respondent
SIMANDLE, District Judge:
I.
INTRODUCTION
Petitioner Alan D. Garrett (“Garrett”) pled guilty to a one-
count Indictment for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g) on October 4, 2011. On January 26,
2012, the undersigned sentenced him to 77 months imprisonment, to
be followed by 3 years of supervised release. Shortly after he
completed his initial term of imprisonment, Garrett violated the
terms
of
his
supervised
release
and
was
sentenced
for
that
violation on December 12, 2016.1 Garrett now seeks to vacate, set
aside, or correct the sentence for violating supervised release
imposed on December 12, 2016, pursuant to 28 U.S.C. § 2255.
[Garrett v. United States, Civ. No. 17-3254 (D.N.J.) at Docket
Item 1 (the “Motion”).] Through various letters and a so-called
“Amended Petition” [id. at Docket Item 34], Garrett also seeks to
vacate,
set
aside,
or
correct
the
sentence
for
his
initial
conviction imposed on January 26, 2012. For the reasons explained
below, the Court will deny Garrett’s initial Motion challenging
his 2016 sentence for violation of supervised release, while
Garrett’s “Amended Petition” and related filings challenging his
2012 conviction and sentence will be dismissed as an unauthorized
second or successive petition under Section 2255(h).
II.
FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND
On October 4, 2011, Garrett pled guilty to a single count
Indictment
for
being
a
felon
in
possession
of
a
firearm
in
violation of 18 U.S.C. § 922(g). [United States v. Garrett, Crim.
No. 11-242 (D.N.J.) at Docket Items 25 & 27.] The undersigned
sentenced Garrett at the bottom of the advisory guidelines range
to 77 months imprisonment, to be followed by 3 years of supervised
After he finished serving this sentence, Garrett subsequently
violated his supervised release two more times, as described below.
1
2
release, and entered the final Judgment of conviction on January
26, 2012 (“the January 26, 2012 Judgment”). [Id. at Docket Items
28 & 29.] Mr. Michael N. Huff, Esq. subsequently filed a notice of
appeal on behalf of Garrett, United States v. Garrett, App. No.
12-1338 (3d Cir.), which the Third Circuit denied, United States
v. Garrett, 507 F. App’x 139 (3d Cir. 2012), affirming the January
26, 2012 Judgment.
On January 2, 2013, Garrett timely filed a petition under 28
U.S.C. § 2255 challenging the January 26, 2012 Judgment on the
basis that his 2012 sentence was invalid because, inter alia, the
Court lacked jurisdiction, he was actually innocent, his counsel
was ineffective, essential elements of the offense were missing,
unlawfully obtained evidence was used, there were Speedy Trial Act
violations, and he was entitled to a downward departure. [United
States v. Garrett, Civ. No. 13-27 (D.N.J.) at Docket Item 1.] The
undersigned denied this § 2255 petition because Garrett had waived
his right to petition for § 2255 relief in his plea agreement and,
in any event, none of his arguments had merit. Garrett v. United
States, 2014 WL 1334213 (D.N.J. Apr. 2, 2014).
On May 9, 2016, Garrett began serving his term of supervised
release. [Garrett, Crim. No. 11-242 (D.N.J.) at Docket Item 40.]
A little more than one month later, Garrett was charged in state
court with aggravated assault, possession of a weapon for unlawful
purposes, and possession of a weapon by a convicted felon. [Id.]
3
Subsequently, those charges were dropped in exchange for Garrett
pleading
guilty
to
hindering
apprehension.
[Id.]
The
U.S.
Probation Office petitioned for a violation of his supervised
release because Garrett had “commit[ted] another federal, state,
or local crime” while under supervision. [Id.] On November 22,
2016,
Garrett’s
probation
officer
subsequently
amended
the
petition, further clarifying the charge in Violation No. 1. [Id.
at Docket Item 47.] A second amended petition was endorsed and
filed November 23, 2016 [Docket Item 50], adding Violation No. 2,
charging Garrett with violating supervised release by possession
of a firearm in connection with the events of Violation No. 1.
Garrett, represented by counsel, pled not guilty to the second
amended petition, and the Court convened the final hearing on
December 8, 2016. [Docket Item 53.] The Government, represented by
AUSA Aliabadi, dismissed Violation No. 2 and proceeded to offer
evidence on Violation No. 1. (Tr. 12/8/16 [Docket Item 58] at 23.) The evidence showed that Garrett was convicted in New Jersey
Superior
Court
of
hindering
his
detention,
apprehension,
or
investigation, in violation of N.J.S.A. § 2C:20-3b(1), on November
16, 2016, arising out of the charged incident on June 6, 2016,
while under the supervision of this Court. Mr. Garrett spoke at
the
hearing,
arguing
that
the
Probation
Office
abused
its
discretion in charging what he considered a “technical violation”
and that the condition of supervision (that “you shall not commit
4
another federal, state, or local crime”) was impermissibly vague.
The Court addressed and rejected these concerns, and found that
the Government proved Garrett’s guilt of Violation No. 1 of the
second amended petition, in an oral opinion. (Tr. 12/8/16 at 16:12
to 20:18.) The undersigned then sentenced Garrett to a term of
imprisonment of 12 months and 1 day, to be followed by a term of
23 months of supervised release, and entered Judgment against
Garrett for violating his supervised release on December 12, 2016
(“the VOSR Judgment”).2 [Id. at Docket Item 54.]
While not directly relevant to this challenge to his first
violation of supervised release herein [Garrett, Civ. No. 17-3254
(D.N.J. at Docket Item 1], the Court notes that Garrett began
serving his second term of supervised release on September 29,
2017. [Garrett, Crim. No. 11-242 (D.N.J.) at Docket Item 70.] About
one month later, Garrett violated a special supervision condition
and, again, his probation officer petitioned the undersigned for
a violation of his supervised release. [Id.; see also id. at Docket
Item 86.] On December 1, 2017, the undersigned entered Judgment
against Garrett for violating his supervised release and sentenced
him to a term of imprisonment of 4 months, to be followed 1 year
of supervised release. [Id. at Docket Item 89.]
2
Garrett began his third term of supervised release on March 14,
2018, but was arrested the following day for possession of a
controlled dangerous substance (“CDS”), possession of CDS/
marijuana over 50 grams, maintaining/operating CDS production,
manufacture/distribution of CDS/heroin, manufacture/distribution
of CDS, and possession with intent to distribute CDS. [Id. at
Docket Item 106.] In an amended petition filed May 31, 2018, four
violations were charged and after a final hearing the Court found
him guilty of violation Nos. 1, 2 & 4 on November 15, 2018. [Id.
Docket Item 119.] On November 16, 2018, the undersigned entered
Judgment against Garrett for violating his supervised release and
sentenced him to a term of 13 months imprisonment with no further
supervision to follow. [Id. at Docket Item 120.]
5
Garrett timely filed a notice of appeal of the VOSR Judgment.
[Id. at Docket Item 55.] In that appeal, Garrett argued to the
Third
Circuit,
inter
alia,
that:
(1)
under
New
Jersey
law,
hindering apprehension is a disorderly persons offense and not a
crime; (2) the terms of Garrett’s supervised release were vague;
(3) the probation officer abused her discretion because Garrett
did not intentionally breach the officer’s trust and that Garrett
“act[ed] with proper care and caution;” and (4) that the resulting
one-year-and-one-day sentence imposed by the District Court was
unreasonable. [United States v. Garrett, App. No. 16-4320 (3d
Cir.), Documents filed by Garrett dated May 5, 2017 and May 22,
2017.] On June 19, 2018, the Third Circuit addressed each of
Garrett’s arguments, denied his appeal on the merits, and affirmed
the VOSR Judgment that Garrett now challenges. United States v.
Garrett, 737 F. App’x 643 (3d Cir. 2018).
On May 8, 2017, Garrett filed the present Motion pursuant to
28 U.S.C. § 2255. [Garrett, Civ. No. 17-3254 (D.N.J.) at Docket
Item
1.]
This
confinement
for
§
2255
motion
violation
of
challenges
his
conviction
supervised
release
imposed
and
on
December 12, 2016 (i.e., the VOSR Judgment), arguing that the Court
failed to grant a downward departure for time served from June 23,
2016 to November 16, 2016 under U.S.S.G. § 5K2.23. [Id. at 3-4.]
Garrett also objected to the condition imposed upon his future
supervised release requiring drug and alcohol testing. [Id. at 4.]
6
On November 21, 2017, the Court alerted Garrett of his rights
under United States v. Miller, 197 F.3d 644 (3d Cir. 1999),
notified Garrett that he may have his pleading ruled upon as filed
or “withdraw his pleading and file an all inclusive Section 2255
Petition including any and all potential claims, subject to the
one (1) year period described by the Antiterrorism Effective Death
Penalty Act [AEDPA] in 28 U.S.C. § 2255,” and instructed Garret
that he had “forty-five (45) days from today’s date within which
to advise the Court as to your decision. If you fail to notify the
Court, your pleading and motion will be ruled upon as filed.”
[Garrett, Civ. No. 17-3254 (D.N.J.) at Docket Item 9] (emphasis in
original). The deadline for Miller amendments thus expired on
January 5, 2018. Garrett subsequently filed several letters on the
docket [see, e.g., id. at Docket Items 11, 16, 17, 20, 21 & 31],
challenging the validity of the initial January 26, 2012 Judgment
(as opposed to the VOSR Judgment at issue in the Motion), which
the
Court
construes
as
support
for
a
separate
Section
2255
challenge, as discussed below.
On July 20, 2018, the Court ordered the Government to file an
Answer within 45 days “which responds to the allegations of the
Motion by each paragraph and subparagraph” and “accompanied by
certified copies of all indictments and/or charges, transcripts,
trial
briefs,
appendices,
opinions,
and
any
and
all
documents in the proceedings.” [Id. at Docket Item 33.]
7
related
A week later, on July 27, 2018, without seeking leave of
Court, Garrett filed a so-called “Amended Petition” pursuant to 28
U.S.C. § 2255(h)(2). [Id. at Docket Item 34.] In this unauthorized
“Amended Petition,” Garrett cites Johnson v. United States, 135
S.Ct. 2551 (2015) and Mathis v. United States, 136 S.Ct. 2243
(2016), and argues, inter alia, that his prior conviction for
burglary, which served as a basis for the underlying felon-inpossession conviction to which Garrett pled guilty in October 2011,
no longer qualifies as a “crime of violence” under the residual
clause of U.S.S.G. § 2K2.1(a)(2). Therefore, Garrett argues his
base offense level for his January 26, 2012 sentence should be 12
instead of 24. He further asserts his counsel was ineffective for
failing to object to the heightened base offense level at the time
of sentencing.
After the Court granted the United States several extensions
of time to respond to the Motion [Garrett, Civ. No. 17-3254
(D.N.J.)
at
Docket
Items
36
&
40],
the
Government
filed
an
opposition brief. [Id. at Docket Item 41.] Garrett has filed a
Reply to the Government’s opposition brief [id. at Docket Item
43], and several letters demanding adjudication. [Id. at Docket
Items 44, 46 & 49.]
III. DISCUSSION
Garrett’s Motion challenges the VOSR Judgment imposed on
December 12, 2016. Since the unauthorized “Amended Petition” was
8
filed without leave of Court more than 45 days after the Miller
Order and because it challenges the January 26, 2012 Judgment
(rather than the VOSR Judgment at issue in the Motion), the
“Amended Petition” and letters Garrett filed in support thereof
must be treated as a separate Section 2255 challenge. See 28 U.S.C.
§ 2255 Rule 2(d) (“A moving party who seeks relief from more than
one judgment must file a separate motion covering each judgment.”).
Accordingly, the Court will first consider the initial Motion
addressing Garrett’s challenge to his sentence for violating the
conditions of his supervised imposed on December 12, 2016, before
turning to the “Amended Petition” and related filings challenging
the underlying conviction of January 26, 2012.
To the Court’s dismay, the Government’s brief fails to mention
anywhere Garrett’s previously-filed § 2255 petition regarding his
2012 Judgment, which as discussed was decided in 2014 and deprives
this Court of jurisdiction over the “Amended Petition” and related
filings. Nor does the Government’s brief include most of the
relevant procedural history, including Garrett’s 2016 conviction
for violating supervised release that is the subject of Garrett’s
initial
Motion,
and
its
affirmance
on
appeal.
In
fact,
the
Government’s brief fails to address any of the arguments raised by
Garrett in the initial Motion and responds only to the arguments
raised in Garrett’s unauthorized “Amended Petition.” The “Amended
Petition” that the Government addresses was not even filed until
9
July 27, 2018, and did not exist when the Court entered its Order
requiring an Answer to the original petition on July 20, 2018.
Therefore, the operative Motion in this § 2255 petition concerns
itself with the challenge raised to Garrett’s sentencing for
violation of supervised release on December 12, 2016, and the
grounds raised consist only of those raised in the original motion
of May 8, 2017 and any amendment timely submitted under Miller on
or before January 5, 2018. None of this has been addressed by the
Government for reasons that cannot be explained, especially in
light of the fact that AUSA Aliabadi presented the Government’s
case at the VOSR hearing on December 8, 2016 that is now under
review. Notwithstanding the Government’s plainly-deficient brief,
the Court decides both the Motion and so-called “Amended Petition”
at
this
time,
without
requesting
further
briefing
from
the
Government, to ensure that these matters are timely-resolved.3
A.
The Motion [Docket Item 1]
“It has been held by the Court of Appeals for the Third
Circuit
that
a
section 2255 motion
generally
‘may
not
[be]
employed to relitigate questions which were raised and considered
on direct appeal.’” Ciocan v. United States, 2010 WL 1068228, at
*3
n.2
(W.D.
Pa.
Mar.
18,
2010)
(quoting
United
States
v.
The existing Court record, coupled with Garrett’s initial
petition and relevant amendments, is more than sufficient to
adjudicate his initial § 2255 Motion attacking his VOSR conviction
and sentence.
3
10
DeRewal, 10 F.3d 100, 105 (3d Cir. 1993); see also White v. United
States, 371 F.3d 900, 901-03 (7th Cir. 2004) (holding that a §
2255 petitioner is not permitted to “relitigate in a collateral
proceeding an issue that was decided on his direct appeal”).
Similarly, the doctrines of collateral estoppel and res judicata
generally preclude any party from relitigating issues or claims
that have been adjudicated by a court of competent jurisdiction.
See Montana v. United States, 440 U.S. 147, 153-54 (1979).
The arguments Garrett advances in the Motion were considered
and rejected by the Third Circuit in Garrett, App. No. 16-4320 (3d
Cir.). Indeed, the Motion is virtually identical to a document
Garrett filed in support of that appeal on May 5, 2017, labeled
“Supplemental Petition under 2255(h)(2).” [Compare id. at Docket
Item 1, with Garrett, App. No. 16-4320 (3d Cir.), Document filed
by Garrett dated May 5, 2017.] The Third Circuit has denied
Garrett’s appeal and affirmed the VOSR Judgment. Garrett, 737 F.
App’x at 646-48. Garrett has raised no new issues in the Motion
with respect to that 2016 Judgment. Accordingly, the Motion will
be denied.
B.
The “Amended Petition” [Docket Item 34] and Related
Filings
As in all matters, this Court must first determine whether it
has jurisdiction to address the “Amended Petition” under § 2255
attacking the 2012 Judgment of conviction. As described above,
11
Garrett untimely filed the so-called “Amended Petition” seeking to
vacate, set aside, or correct the initial January 26, 2012 Judgment
pursuant to 28 U.S.C. § 2255(h)(2). [Garrett, Civ. No. 17-3254
(D.N.J.) at Docket Item 34.] He also filed several letters [see,
e.g., id. at Docket Items 3, 11, 16, 17, 20, 21 & 31], which the
Court considers as additional support for Garrett’s § 2255 petition
to vacate, set aside, or correct the January 26, 2012 Judgment. In
these filings, which the Court construes liberally in light of
Garrett’s pro se status, Garrett essentially argues that Johnson
and/or Mathis sets forth a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable, and that this new rule supports
vacating,
setting
aside,
or
correcting
the
January
26,
2012
Judgment. The Court lacks jurisdiction to consider such a claim,
which is a second or successive § 2255 petition, as now explained.
Through the Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Congress imposed a stringent gatekeeping provision
which limited a prisoner’s ability to file “second” or “successive”
§ 2255 habeas petitions. See 28 U.S.C. §§ 2244(a), 2255(h). That
is, before a second or successive § 2255 petition can be heard by
the sentencing court, the petition must be certified by the Court
of Appeals as containing:
(1)
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
12
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2)
a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h). In other words, before a second or successive
§ 2255 motion may be filed in the district court, the applicant
must move in the appropriate court of appeals, here the Third
Circuit, for an order authorizing the district court to consider
the motion.
With respect to the January 26, 2012 Judgment, Garrett filed
a first § 2255 petition on January 2, 2013, Garrett, Civ. No. 1327 (D.N.J.), which the undersigned denied on the merits, Garrett,
2014 WL 1334213 (D.N.J. Apr. 2, 2014). Because the Amended Petition
and related filings seek to vacate, set aside, or correct that
same Judgment pursuant to § 2255, Garrett’s petition (his socalled
“Amended
Petition”)
is
second
or
successive.
Garrett
requested,4 but has not yet received, permission from the Third
Garrett claims he received permission from the Third Circuit
to file a Johnson petition in the district court under 28 U.S.C.
2255(h)(2) in Garrett, App. No. 16-4320 (3d Cir.). [Garrett, Civ.
No. 17-3254 (D.N.J.) at Docket Item 48.] This claim is demonstrably
false. As noted above, in that appeal, the Third Circuit simply
denied Garrett’s direct appeal and affirmed the VOSR Judgment.
Garrett, 737 F. App’x 643 (3d Cir. 2018). Garrett, whether pro se
or not, should stop making misrepresentations to the Court.
4
In fact, on February 6, 2018, Garrett filed an application with
the Third Circuit for leave to file a second or successive petition
pursuant to 28 U.S.C. 2244(b). In re Alan D. Garrett, App. No. 181202 (3d Cir.). On July 19, 2018, however, Garrett filed a letter
13
Circuit to file such a petition with respect to the January 26,
2012.
Therefore,
the
Court
lacks
jurisdiction
to
consider
Garrett’s claims. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h).
If a second or successive petition is filed in the district
court without an order from the appropriate court of appeals, the
district court may dismiss for want of jurisdiction or “shall, if
it is in the interest of justice, transfer such action . . . to
any other such court in which the action . . . could have been
brought at the time it was filed.” 28 U.S.C. § 1631; see also
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002), cert.
denied, 540 U.S. 826 (2003) (“When a second or successive habeas
petition is erroneously filed in a district court without the
permission of a court of appeals, the district court's only option
is to dismiss the petition or transfer it to the court of appeals
pursuant to 28 U.S.C. § 1631.”).
In this case, the Court does not find that it is in the
interest of justice to transfer Garrett’s “Amended Petition” to
the Third Circuit because his successive § 2255 petition is in any
in that case asking the Third Circuit to close the docket, and the
case was subsequently dismissed pursuant to Fed. R. App. P. 42(b).
Id.
The Court additionally notes that Garrett filed a petition for
writ of mandamus in the Third Circuit on July 6, 2018. In re
Garrett, Ap. No. 18-2516 (3d Cir.). That case was dismissed by the
Third Circuit on August 30, 2018, due to Garrett’s failure to
comply with Fed. R. App. P. 21.
14
event untimely. In the “Amended Petition,” Garrett argues that his
sentence should be vacated, corrected, or set aside under Johnson
and/or Mathis. Under 28 U.S.C. § 2255(f)(3), the one-year statute
of limitations runs “from the latest of . . . [t]he date on which
the right asserted was initially recognized by the Supreme Court
and made retroactively applicable to cases on collateral review.”
Moreover, the Supreme Court has recognized that § 2255(f)(3)’s
limitation period runs from the date the Supreme Court recognizes
the new right, not the date the new right is made retroactive. See
Dodd v. United States, 545 U.S. 353, 357-58 (2005). Thus, the
statute of limitations ran on Garrett’s Johnson argument on June
25, 2016, and he untimely filed his § 2255 petition (in the form
of the “Amended Petition”) on July 27, 2018. Moreover, “[t]he
Supreme
Court
has
never
held
that
Mathis
.
.
.
appl[ies]
retroactively to cases on collateral review, nor do any combination
of Supreme Court precedents dictate the retroactivity of [that
case].” United States v. Peppers, 899 F.3d 211, 229 (3d Cir. 2018).
As such, Garrett does not appear able to meet the standard under
§ 2255(h) for bringing a second or successive petition, and thus
the interests of justice do not warrant transfer of this case to
the Third Circuit to consider whether such authorization would be
granted. This decision not to transfer the petition in no way
precludes Garrett from seeking permission from the Third Circuit
himself pursuant to §§ 2244(b) and 2255(h)(2), should he so choose.
15
C.
Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2255 proceeding unless a judge
issues a certificate of appealability on the ground that “the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The United States
Supreme Court held in Slack v. McDaniel that “[w]hen the district
court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” 529 U.S. 473, 484 (2000). This
Court denies a certificate of appealability because jurists of
reason would not find it debatable that denial of the Motion or
dismissal of the “Amended Petition” and related filings is correct.
16
IV.
CONCLUSION
For the foregoing reasons Garrett’s Motion challenging his
2016 VOSR conviction will be denied and the “Amended Petition” and
related filings challenging his 2012 conviction will be dismissed
for lack of jurisdiction. An accompanying Order will be entered.
May 6, 2019
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
17
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