RENSING v. UNITED STATES OF AMERICA

Filing 6

OPINION. Signed by Judge Noel L. Hillman on 2/14/2020. (rss, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WILLIAM RENSING,
Petitioner,

1:17-cv-04130-NLH
OPINION

v.
UNITED STATES OF AMERICA,
Respondent.

APPEARANCES:
WILLIAM RENSING
63643-050
FEDERAL CORRECTIONAL COMPLEX
PO BOX 1000
PETERSBURG, VA 23804
Petitioner pro se
DANIEL V. SHAPIRO
OFFICE OF THE U.S. ATTORNEY
DISTRICT OF NEW JERSEY
970 BROAD STREET
SUITE 700
NEWARK, NJ 07102
On behalf of Respondent
HILLMAN, District Judge
This matter comes before the Court on Petitioner William
Rensing’s motion to vacate, set aside, or correct his criminal
sentence pursuant to 28 U.S.C. § 2255.

On December 6, 2012,

Petitioner pleaded guilty to one count of Distribution of Child
Pornography, 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).

On May 23,

2013, the Honorable Jerome B. Simandle, U.S.D.J., sentenced
Petitioner to a 210-month term of imprisonment, and a 10-year
term of supervised release.

(1:12-cr-00663-JBS.)

Petitioner’s

conviction became final for purposes § 2255 on February 6, 2014
rendering any petition filed one year after date - February 6,
2015 – presumptively untimely.
On June 8, 2017, Petitioner filed his instant motion
pursuant to § 2255(a). 1

Shortly thereafter Judge Simandle issued

an Order to Show Cause, stating it appeared that Petitioner’s
application may be time-barred, but Judge Simandle wished to
give Petitioner an opportunity to explain why he believed it was
timely.

(Docket No. 2.)

Judge Simandle explained in his Order:
Petitioner Rensing pled guilty and was later sentenced
before the undersigned on May 23, 2013. An appeal was taken
and the appeal was denied by the U.S. Court of Appeals for
the Third Circuit on November 8, 2013. No petition for
certiorari was filed to the Supreme Court. The conviction
thus became “final” when the 90-day period for seeking
certiorari expired on or about February 6, 2014. The oneyear limitation period [under § 2255] began to run on that
date and it expired on February 6, 2015, about 28 months
before this petition was filed on June 8, 2017 [citing §
2255(f), which provides for a one-year period of limitation
in which to file this petition]. 2
1

This matter was reassigned to this Court on August 7, 2019
after the passing of Judge Simandle.
2

Section 2255(f) provides:
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run from
2

In the petition, petitioner raises two grounds.
Ground One states:
Defendant’s counsel of record failed to apprise the
Court of or raise the argument that USSG 2G2.2 is
flawed and should not have been applied. Counsel also
failed to move the Court to order defendant undergo a
complete psychological evaluation which would have
ultimately affected the overall outcome of his
criminal proceedings.
Ground Two asserts the following:
Prosecutor misrepresented plea agreement defendant was
ultimately coerced into signing. Prosecutor also
failed to show evidence of actual distribution and,
instead, regaled the court with fanciful tales of what
defendant “may have done”. This enhancement/guideline
application was inappropriate. Prosecution failed to
provide a computer expert’s testimony to show evidence
of the crime for which defendant was sentenced
(distribution).
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;
(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).
3

In his Petition, Mr. Rensing is asked about the
timeliness of the motion in Petition paragraph 18, which
inquires: “If your judgment of conviction became final over
one year ago, you must explain why the one-year statute of
limitations as contained in 28 U.S.C. § 2255 does not bar
your motion.” In response to this section, Petitioner
states the following: “New law was passed in late 2016
which goes to timeliness. Also, waiting for responses to
appeals, as well as being in transit between BOP facilities
prevented more timely filing of this motion.”
The Court will require further explanation because the
assertion of timeliness in paragraph 18 is insufficient.
The Court is aware of no new law passed in 2016 which
affects the issue of timeliness of a Section 2255 petition.
Moreover, to be timely, the petitioner must explain how he
was prevented from filing a timely petition before February
6, 2015 through June 8, 2017. By February 6, 2014, his
appeals were over, and it does not make sense that he was
“in transit between BOP facilities” during the entire time
that has elapsed before filing his Petition.
(Docket No. 2 at 1-4.)
Judge Simandle provided Petitioner with 21 days to “state
the factual basis for his claiming that this Petition was timely
filed under the one-year limitation period of Section 2255.”
(Id. at 4.)
On June 30, 2017, Petitioner filed his response to the
Order to Show Cause.

(Docket No. 3.)

Petitioner identifies the

“new law” he refers to in his petition as “the 15 November 2016
Clarifying Amendment to U.S.S.G. 2G2.2(b)(3)(B) pertaining to
distribution of child pornography.”

(Id. at 1.)

Because Petitioner is proceeding pro se, his petition is
held to less stringent standards than those pleadings drafted by
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lawyers.

Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)

(“It is the policy of the courts to give a liberal construction
to pro se habeas petitions.”)

However, “[i]f it plainly appears

from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the
judge must dismiss the motion and direct the clerk to notify the
moving party.”

28 U.S.C. § 2255 Rule 4(b).

This Court finds

that Petitioner’s proffered basis for relief from § 2255(f)’s 1year limitations period is without merit.
“[Section] 2255 motions are the presumptive means by which
a federal prisoner can challenge a conviction or sentence that
allegedly is in violation of the Constitution or federal laws or
that is otherwise subject to collateral attack.”

Chambers v.

Romine, 41 F. App’x 525, 526 (3d Cir. 2002) (citing Davis v.
United States, 417 U.S. 333, 343 (1974)). 3
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a

3

“The only exception is when § 2255 proves ‘inadequate or
ineffective’ to test the legality of detention.” Id. (citing 28
U.S.C. § 2255; Davis, 417 U.S. at 343; In re Dorsainvil, 119
F.3d 245, 249 (3d Cir. 1997)). “Section 2255 is not ‘inadequate
or ineffective’ merely because the sentencing court is
disinclined to grant relief (either because it finds the claim
raised to be without merit or because the one-year statute of
limitations has expired), or because a petitioner is unable to
meet the stringent gatekeeping requirements of the amended §
2255.” Id. (quoting Cradle v. United States, 290 F.3d 536, 539
(3d Cir. 2002)).
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defendant in federal custody may file a motion collaterally
attacking his sentence based on certain specifically listed
grounds, namely (1) that the sentence was imposed in violation
of the Constitution or federal law, (2) that the court was
without jurisdiction to impose the sentence, (3) that the
sentence exceeded the maximum authorized by law, or (4) that the
sentence “is otherwise subject to collateral attack[.]”
U.S.C. § 2255(a).
as of right.

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A defendant is allowed only one such motion

Id. § 2255(b),(h).

“To avoid making successive

claims, petitioners must marshal in one § 2255 writ all the
arguments they have to collaterally attack their convictions.
And in order to avoid being time barred, they must take care to
file this one all-inclusive petition within one year of the date
on which the judgment of conviction becomes final.”

United

States v. Miller, 197 F.3d 644, 649 (3d Cir. 1999).
It appears that Petitioner has moved for relief from §
2255’s one-year statute of limitations based upon Amendment 801
to U.S.S.G. § 2G2.2(b)(3)(B), effective November 1, 2016.

It

appears that Petitioner requests that Amendment 801 be applied
retroactively to reduce his sentence, which was imposed under §
2G2.2(b)(3)(B).
Separate from a § 2255 petition, typically a motion for
sentence reduction based on a reduction in the applicable

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guideline is governed by U.S.S.G. § 1B1.10 and 18 U.S.C. §
3582(c)(2).

A defendant may obtain relief under § 3582(c)(2)

only if the amendment “is consistent with applicable policy
statements issued by the Sentencing Commission.”

18 U.S.C. §

3582(c)(2) (“[I]n the case of a defendant who has been sentenced
to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission pursuant
to 28 U.S.C. 994(o), upon motion of the defendant or the
Director of the Bureau of Prisons, or on its own motion, the
court may reduce the term of imprisonment, after considering the
factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”).
However, a reduction under § 3582(c)(2) is not authorized
unless an amendment reducing the applicable guidelines range is
among those listed in § 1B.10(d).
F.3d 207, 221 (3d Cir. 2008).

United States v. Wise, 515

Here, the amendment under which

Petitioner seeks relief is Amendment 801, but that amendment is
not covered under § 1B1.10(d).

Therefore, Amendment 801 cannot

serve as the basis for reducing Petitioner’s previously imposed
sentence.

See, e.g., United States v. Handerhan, 789 F. App’x

924, 927 (3d Cir. 2019) (“Handerhan is not eligible for relief
under that provision because the Commission has not made

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Amendment 801 retroactive for purposes of § 3582(c)(2) by
listing it in U.S.S.G. § 1B1.10(d) (formerly § 1B1.10(c)).”
(citing United States v. Wise, 515 F.3d 207, 221 & n.11 (3d Cir.
2008); U.S.S.G. § 1B1.10(a)).

In short, Amendment 801 provides

no relief for Petitioner and therefore it cannot provide the
basis to toll or restart § 2255’s one year statute of
limitations.

Petitioner has failed to show that the one-year

statute of limitations does not bar his § 2255 petition. 4
As for Petitioner’s other grounds for relief, Petitioner
has not demonstrated that the one-year statute of limitations
does not also bar those grounds for relief.

As noted, Judge

Simandle previously determined that Petitioner’s claims that he
was “waiting for responses to appeals, as well as being in
transit between BOP facilities prevented more timely filing of
this motion[]” were insufficient grounds to toll the one-year
statute of limitations.

That determination is the law of the

case, and Petitioner has proffered no new or different facts to
alter that holding.

Accordingly, this Court finds Petitioner’s

additional grounds for relief to be time-barred as well.
Because the Court will dismiss Petitioner’s § 2255 motion

4

Similarly, if Petitioner had filed a motion for sentence
reduction under U.S.S.G. § 1B1.10, such motion would be
unavailing for the same reason.

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as untimely, the Court must determine whether to issue a
certificate of appealability (“COA”).

A COA is a

“jurisdictional prerequisite” to an appeal on the merits, and
“the COA statute establishes procedural rules and requires a
threshold inquiry into whether the circuit court may entertain
an appeal.”

U.S. v. Doe, 810 F.3d 132, 143 (3d Cir. 2015)

(quoting Miller–El v. Cockrell, 537 U.S. 322, 336 (2003)).
Section 2253(c)(2) provides that “[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).

The Supreme Court has held:

When 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.
Slack v. McDaniels, 529 U.S. 473, 484 (2000).
This Court finds that jurists of reason would not find it
debatable whether this Court was correct in its procedural
ruling.

Consequently, the Court will decline to issue a

certificate of appealability.
An appropriate Order will be entered.
Date: February 14, 2020
At Camden, New Jersey

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

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