RIVERA v. UNITED STATES OF AMERICA
Filing
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OPINION. Signed by Judge Noel L. Hillman on 11/2/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Petitioner,
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v.
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UNITED STATES OF AMERICA,
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Respondent.
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___________________________________:
RICARDO RIVERA, JR.,
Civ. No. 18-3702 (NLH)
OPINION
APPEARANCE:
Ricardo Rivera, Jr., No. 41323-050
USP - Hazelton
P.O. Box 2000
Bruceton Mill, WV 26565
Petitioner, pro se
HILLMAN, District Judge
Petitioner Ricardo Rivera, Jr., a prisoner presently
confined at the United States Penitentiary at Hazelton in
Bruceton Mill, West Virginia, has filed an Amended Motion to
Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C.
§ 2255.
ECF No. 5.
At this time, the Court will conduct a
preliminary review of the Amended Motion pursuant to Rule 4 of
the Rules Governing Section 2255 Proceedings.
BACKGROUND
On September 21, 2007, Petitioner was convicted of
possessing a firearm in violation of 18 U.S.C. § 922(g)(1).
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See
ECF No. 5 at 1; see also No. 06-cr-849, ECF No. 18 (judgment of
conviction).
Petitioner did not file an appeal.
Over a decade later, Petitioner filed the initial § 2255
Motion on March 16, 2018.
See ECF No. 1.
The Motion was
administratively terminated with the right to reopen because the
Motion was not on the form required for motions pursuant to 28
U.S.C. § 2255 by Local Rule 81.2.
See ECF Nos. 3, 4.
Petitioner has since filed an Amended Motion on the correct
form.
See ECF No. 5.
In the Motion, Petitioner alleges
ineffective assistance of counsel, prosecutorial misconduct
related to his pre-sentence investigation report, and also seeks
to challenge his state court convictions.
See ECF No. 5 at 4-9.
TIMELINESS
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), petitions 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;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been
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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).
Petitioner did not file a direct appeal of his criminal
case.
Therefore, his judgment of conviction became final on
October 5, 2007.
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, including the ninety-day period for filing
a petition for writ of certiorari).
As a result, unless the
statute of limitations was tolled, the statute of limitations
would have expired a year later on October 5, 2008.
U.S.C. § 2255(f)(1).
See 28
The Motion was not filed until 2018, well
beyond the one-year period.
Thus, the Petition was filed beyond
the expiration of the applicable one-year statute of limitations
period.
In the section of the Amended Motion entitled “Timeliness
of Motion,” Petitioner writes that “I was advised by Richard
Coughlin on September 21, 2011 via legal mail that I must
address my issues when I’m in federal custody.
custody from 9-22-06 to 10-15-17.”
I was in state
ECF No. 5 at 12.
Without
making any determination as to the merits of the Petition, the
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Court finds that Petitioner has failed to properly explain why
his Amended Motion is timely under § 2255(f).
TOLLING
As set forth above, the Petition 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.
560 U.S. 631, 649–
50 (2010); Ross v. Varano, 712 F.3d 784, 798 (3d Cir. 2013).
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.
“This obligation does not pertain
solely to the filing of the federal habeas petition, rather it
is an obligation that exists during the period appellant is
exhausting state court remedies as well.”
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LaCava v. Kyler, 398
F.3d 271, 277 (3d Cir. 2005).
See also Alicia v. Karestes, 389
F. App'x 118, 122 (3d Cir. 2010) (holding that the “obligation
to act diligently pertains to both the federal habeas claim and
the period in which the petitioner exhausts state court
remedies”).
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
petition and the prisoner has exercised reasonable diligence in
attempting to investigate and bring his claims.”
F.3d at 275–276.
LaCava, 398
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
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equitable tolling should be applied sparingly, and only when the
“principles of equity would make the rigid application of a
limitation period 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, although Petitioner has explained why he waited to
file the Motion, he has not explained why it was reasonable for
him to rely on the advice he says he received regarding the
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Motion. 1
Further, Petitioner has failed to address the factors
required to consider equitable tolling outlined above.
Without
this information, the Court is unable to assess equitable
tolling.
Accordingly, the Amended Motion will be dismissed as
untimely.
This dismissal is without prejudice to Petitioner filing a
motion to re-open this case for consideration of statutory or
equitable tolling issues.
See United States v. Bendolph, 409
F.3d 155, 169 (3d Cir. 2005) (en banc) (holding that district
courts should provide petitioners with notice and opportunity to
respond to a finding of untimeliness); Paulk v. United States,
No. 14-3490, 2015 WL 3935813, at *3 (D.N.J. June 26, 2015)
(dismissing petition but permitting plaintiff to file a motion
to reopen to show valid reasons why the petition should not be
dismissed as untimely).
CONCLUSION
For the foregoing reasons, the Petition is dismissed
without prejudice as untimely.
See 28 U.S.C. § 2255(f).
Petitioner may file a motion to re-open this case for
consideration of statutory or equitable tolling issues within
1
As noted, the Petition alleges Petitioner received advice via
legal mail from Richard Coughlin, whom the Court presumes to be
the Federal Public Defender for this District. Petitioner was
represented by Christopher O’Malley of the Federal Public
Defender’s Office in his underlying criminal case. See United
States v. Ricardo Rivera, Jr., 06-cr-849 (NLH).
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sixty (60) days from the entry of this Opinion and accompanying
Order.
See Bendolph, 409 F.3d at 169.
An appropriate Order will follow.
Dated: November 2, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
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