SPENCER v. UNITED STATES OF AMERICA

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 11/1/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
___________________________________:
SHAAMEL SPENCER,

Civ. No. 17-4777 (NLH)
OPINION

APPEARANCES:
Shaamel Spencer, No. 65119-050
FCI - McKean
P.O. Box 8000
Bradford, PA 16701
Petitioner, pro se
Patrick C. Askin, Esq.
Office of the U.S. Attorney
401 Market Street
Camden, NJ 08101
Counsel for Respondent
HILLMAN, District Judge
Petitioner Shaamel Spencer, a prisoner presently confined
at the Federal Correctional Institution at McKean in Bradford,
Pennsylvania, filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255.

ECF No. 1.

He later

filed an Amended Motion, ECF No. 5 (the “Petition”), and a
supplemental brief, ECF No. 7.

Respondent filed an Answer in

which it argued that the Petition was untimely.

1

ECF No. 12.

Petitioner has not filed a reply.

For the reasons that follow,

the Court will deny the Petition as untimely.
I.

BACKGROUND
On April 14, 2014, Petitioner pled guilty to a two-count

information charging him with conspiring to possess with intent
to distribute 100 grams or more of heroin and possession of two
firearms by a convicted felon.

See No. 14-cr-50, ECF Nos. 140

(Information); 143 (plea agreement).

In the plea agreement,

Petitioner stipulated that he was a “career offender” under the
provisions of U.S.S.G. § 4B1.1, that his total offense level was
31, and that his criminal history category was VI.
50, ECF No. 143.

No. 14-cr-

In addition, Petitioner agreed to waive his

right to file an appeal or collateral attack on his sentence if
he was sentenced within or below the Guidelines range resulting
from a total Guidelines offense level of 31.

See id. at 8.

At sentencing before the Honorable Joseph E. Irenas, the
Court found that Petitioner was a career offender with a total
offense level of 31 and a criminal history category of VI, with
a resulting advisory guideline range of 188 to 235 months.
No. 14-cr-50, ECF No. 12-3 (sentencing transcript).

See

The

government asked for a sentence within the middle of the
guideline range, and Petitioner asked for a downward variance
and a sentence of 120 months’ imprisonment.

Id.

The Court

granted a downward variance to Level 29 and then sentenced
2

Petitioner to 151 months’ imprisonment, which was at the bottom
of the advisory guideline range at Level 29, Criminal History
Category VI. 1

See No. 12-3 (sentencing transcript).

entered the judgment of conviction on July 23, 2014.

The Court

50, ECF No. 246.

No. 14-cr-

Petitioner did not file an appeal.

Petitioner later filed a letter with the Court on April 11,
2016, inquiring about the status of his case in light of the
Supreme Court’s ruling that the residual clause of the Armed
Career Criminal Act was unconstitutionally vague, citing Johnson
v. United States, 135 S. Ct. 2551 (2015).
ECF No. 858.

See No. 14-cr-050,

On June 24, 2016, Petitioner, through counsel,

filed a motion to correct his sentence under 28 U.S.C. § 2255
claiming that he was incorrectly determined by the sentencing
court to be a “career offender” in light of Johnson.
14-cr-050, ECF No. 871; No. 16-cv-3733, ECF No. 1.

See No.
On June 29,

2017, Petitioner filed a notice of voluntary dismissal of that §
2255 motion after the Supreme Court’s decision in Beckles v.
United States, 137 S. Ct. 886 (2017).

No. 16-cv-3733, ECF No.

4.
On June 23, 2017, Petitioner filed a new Motion to Vacate,
Set Aside or Correct Sentence pursuant 28 U.S.C. § 2255, the

1

The sentence imposed was “within or below the Guidelines range
that results from the agreed total Guidelines offense level of
31.” See No. 14-cr-50, ECF No. 143, Sch. A.
3

date on which he placed it in the prison’s mailing system.
No. 1 at 5.

ECF

It was filed on the docket a few days later, on

June 28, 2017.

See ECF No. 1.

At the direction of the Court,

Petitioner filed an amended motion utilizing the correct form.
ECF No. 5.

In his Petition, Petitioner raises as grounds for

relief the ineffectiveness of his trial counsel 2 and a claim
based on the Supreme Court’s holding in Mathis v. United States,
136 S. Ct. 2243 (2016).

ECF Nos. 1, 5.

On January 29, 2018,

Petitioner filed a motion to supplement the pending § 2255
petition.

ECF No. 7.

On February 1, 2018, the Court granted

Spencer’s motion to supplement the pending § 2255 motion to
correct the sentence.

ECF No. 8.

The supplemental brief

includes additional argument and authority in support of the
claims raised in the Petition.
II.

See ECF No. 7.

DISCUSSION
A. Timeliness
Section 2255 provides a one-year statute of limitations

from the date on which the petitioner’s conviction becomes final
or from “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly

2

Petitioner also argues that certain prior offenses should not
be counted as prior convictions under the career offender
provisions. See ECF No. 5 at 5-6. It is unclear whether
Petitioner seeks to bring this claim independently or as an
example of the ineffectiveness of his trial counsel. Any such
claim, however, would be untimely as discussed below.
4

recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.”

28 U.S.C. §

2255(f)(1) & (3).
Here, Petitioner’s sentence became final on or about August
6, 2014, after the time for filing an appeal expired.

See

Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012) (holding that a
judgment is determined to be final by the conclusion of direct
review, or the expiration of time for seeking such review).

The

Petition, however, was not filed until on or about June 23,
2017.

ECF No. 1 at 5 (certificate of service providing that

Petitioner placed the Petition in the mail on June 23, 2017).
2018”).

See Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998)

(under the prison mailbox rule, “a pro se prisoner's habeas
petition is deemed filed at the moment he delivers it to prison
officials for mailing[.]”).

Thus, the Petition was filed beyond

the expiration of the applicable one-year statute of limitations
period contained in § 2255(f)(1).
Petitioner does not address the issue of timeliness in
either his Petition or his Amended Petition other than to state
that the grounds for relief were not apparent until after the
Mathis decision or after he researched them.
5.

See ECF No. 5 at

Because the Petition includes a Mathis claim, the Court will

presume in light of Petitioner’s pro se status that Petitioner
is asserting that Mathis announced a new right that
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retroactively applies to his sentence, rendering his Petition
timely under § 2255(f)(3).
Under § 2255(f)(3), both the Supreme Court and lower
federal courts can decide the retroactive applicability of a new
right announced by the Supreme Court when reviewing a petition.
See United States v. Swinton, 333 F.3d 481, 487 (3d Cir. 2003)
(holding that “the statute of limitations provision of § 2255
allows district courts and courts of appeals to make
retroactivity decisions”).

Thus, if Mathis recognized a new

right for the purpose of § 2255(f)(3), the Mathis claim in the
Petition would be timely because it was placed in the mail on
June 23, 2017, within one year of the date Mathis was decided on
June 23, 2016. 3
The Court of Appeals for the Third Circuit has not yet
decided in a published decision whether Mathis recognized a new
right for the purpose of § 2255(f)(3), but it has cited
approvingly to the reasoning of several other Courts of Appeals
that have determined that neither Mathis, nor its predecessor,
Descamps v. United States, 570 U.S. 254 (2013), establish a new
right.

See Boatwright v. Warden, FCI Fairton, 2018 WL 3640305,

at *2 (3d Cir. July 31, 2018) (citing Dimott v. United States,

3

Even if Mathis were a newly recognized right for the purpose of
§ 2255(f)(3), Petitioner’s other claims for relief would still
be untimely.
6

881 F.3d 232, 237 (1st Cir. 2018), cert. denied, No. 17-1251,
2018 WL 1243146 (U.S. June 25, 2018); In re Conzelmann, 872 F.3d
375, 376-77 (6th Cir. 2017); Beeman v. United States, 871 F.3d
1215, 1219-20 (11th Cir. 2017); United States v. Morgan, 845
F.3d 664, 666-67 (5th Cir. 2017)).
The Court agrees with the Courts of Appeals that have held
that Mathis is not new.

In Mathis, the Supreme Court stated

that its “precedents make [it] a straightforward case,”
observing that its prior rulings and over twenty-five years of
precedent dictate its conclusion.

136 S. Ct. at 2257.

Because

Mathis does not announce a new right but simply applies the
Court’s prior precedents to a new factual scenario, Petitioner’s
Mathis claim does not fall within the limitations period
provided in § 2255(f)(3) and is untimely.
B. Equitable Tolling
The Petition is time-barred unless Petitioner can
demonstrate extraordinary circumstances to justify equitable
tolling of the limitations period.

“[T]he AEDPA's one-year

limitation period is subject to equitable tolling in appropriate
cases.”

Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013)

(citing Holland v. Florida, 560 U.S. 631, 645 (2010)); Miller v.
N.J. State Dep't of Corr., 145 F.3d 616, 619 n.1 (3d Cir. 1998)
(holding that equitable tolling applies to § 2255 motions).

A

litigant seeking equitable tolling bears the burden to establish
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“(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

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.”).
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.

Holland, 560 U.S. at 651.

Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003).

See also
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 state prisoner faces extraordinary
circumstances that prevent him from filing a timely habeas
8

petition and the prisoner has exercised reasonable diligence in
attempting to investigate and bring his claims.”
Kyler, 398 F.3d 271, 275–76 (3d Cir. 2005).

LaCava v

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 unfair”).
Extraordinary circumstances have been found only where (1)
the respondent has actively misled the plaintiff, (2) the
petitioner has in some extraordinary way been prevented from
asserting his rights, (3) the petitioner has timely asserted his
rights mistakenly in the wrong forum, or (4) 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)).

9

Here, Petitioner has presented no “extraordinary
circumstances” or explanation for the delay in bringing his
Petition that would allow this Court to consider equitable
tolling.

Thus, the Petition will be dismissed as untimely.

III. EVIDENTIARY HEARING
An evidentiary hearing is not warranted when the files and
records of the matter conclusively show that the petitioner is
entitled to no relief.

See 28 U.S.C. § 2255(b).

Petitioner has

failed to meet his burden of demonstrating his entitlement to
relief in the Petition, and the Court will decline to order an
evidentiary hearing.
IV.

CERTIFICATE OF APPEALABILITY
The Court will decline to issue a certificate of

appealability because Petitioner has not demonstrated “a
substantial showing of the denial of a constitutional right” as
required by 28 U.S.C. § 2253(c)(2).

See Miller-El v. Cockrell,

537 U.S. 322, 327 (2003).
V.

CONCLUSION
For the foregoing reasons, the Petition is denied as

untimely.

See 28 U.S.C. § 2255(f)(1) & (3).

An appropriate

order will follow.

Dated: November 1. 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
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