MACON v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 4/16/2018. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
Civ. No. 18-3943 (NLH)
Lamar Macon, No. 65282-050
USP - Allenwood
P.O. Box 3000
White Deer, PA 17887
Petitioner, pro se
HILLMAN, District Judge
On or about March 22, 2018, Petitioner Lamar Macon, a
prisoner presently confined at the United States Penitentiary at
Allenwood in White Deer, Pennsylvania, submitted a Motion to
Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C.
§ 2255 (the “Petition”). 1
ECF No. 1.
At this time, the Court
will conduct a preliminary review of the Petition pursuant to
Rule 4 of the Rules Governing Section 2255 Proceedings.
The Court notes that the Petitioner did not use the habeas form
required by Local Rule 81.2 for § 2255 motions, i.e., AO243
(modified): DNJ-Habeas-004 (Rev. 01-2014). The Petitioner also
did not sign his Petition at all. See Rule 2 of the Rules
Governing Section 2255 Proceedings (requiring signature under
penalty of perjury).
On May 20, 2015, Petitioner was convicted of various drug
offenses and sentenced to a total of 240 months’ imprisonment.
ECF No. 1, Pet. at 2; No. 14-cr-50, ECF No. 676 (judgment).
Petitioner proceeded with a direct appeal to the Court of
Appeals for the Third Circuit, which affirmed his conviction and
See No. 14-cr-50, ECF No. 901 (mandate).
file a petition for writ of certiorari with the Supreme Court of
the United States, which was denied on February 21, 2017.
No. 15-2275, Notice dated Feb. 21, 2017 (3d Cir.).
Over a year later, Petitioner filed the instant § 2255
Motion by mailing it via certified mail to the Clerk of the
The Motion was docketed on March 22, 2018, the same day
it was received by the Clerk according to a stamp on the
The certified mail tracking data, which the Court has
retrieved from a public source, establishes the Motion was first
placed in the custody of the United States Postal Service to be
mailed to the Clerk on March 20, 2018.
Petitioner did not date
his Motion or the supporting brief, so it is unclear from the
Motion itself when the Petitioner placed it in the prison’s mail
See ECF No. 1, Pet. at 14; ECF No. 1-1, Br. at 14.
However, the envelope also bears a second date stamp of March
19, 2018 which appears to be the date it was received in the
prison mail system. See ECF No. 1-2 (envelope).
In the Petition, Petitioner argues that his trial and
appellate counsel were ineffective and that he is actually
innocent of certain offenses because he withdrew from the drug
conspiracy and thus should not be criminally liable for a murder
that occurred after he withdrew.
See ECF No. 1, Pet. at 5-8.
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.
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
(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
(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;
(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’s direct appeal of his criminal case concluded
when the Supreme Court of the United States denied his petition
for writ of certiorari on February 21, 2017.
judgment of conviction became final on February 21, 2017.
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
As a result, unless the statute of limitations
was tolled, the applicable statute of limitations would have
expired a year later on February 21, 2018.
See 28 U.S.C. §
The Petition, however, was not filed until on or about
March 19, 2018.
ECF No. 1-2 (envelope stamped “MAR 19 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
Thus, the Petition was filed beyond the
expiration of the applicable one-year statute of limitations
In the section of the Petition entitled “Timeliness of
Motion,” Petitioner writes only that “The Motion IS Timely.”
ECF No. 1, Pet. at 13.
Without making any determination as to
the merits of the Petition, the Court finds that Petitioner has
failed to properly explain why his Petition is timely under §
As set forth above, the Petition is time-barred unless
Petitioner can demonstrate extraordinary circumstances to
justify equitable tolling of the limitations period.
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).
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.
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.”
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
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.
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).
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.
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”).
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
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.
will be dismissed as untimely.
Accordingly, the Petition
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).
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
sixty (60) days from the entry of this Opinion and accompanying
See Bendolph, 409 F.3d at 169.
An appropriate Order will follow.
Dated: April 16, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
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