MCAULEY v. UNITED STATES OF AMERICA

Filing 22

OPINION. Signed by Judge William J. Martini on 2/19/13. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 2:11-06930 (WJM)

EARL McAULEY,
Plaintiff,

OPINION
v.
UNITED STATES,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
This matter comes before the Court on pro se Petitioner Earl McAuley’s
motion to vacate his criminal conviction under 28 U.S.C. § 2255 (“Section 2255”),
on McAuley’s motion for a writ of audita querela tolling the statute of limitation
on his Section 2255 motion, and on McAuley’s motions for discovery under Rules
6 and 7 of the Rules Governing Section 2255 proceedings. There was no oral
argument. Fed. R. Civ. P. 78(b). For the reasons stated below, the motions are
DENIED and the Petition is DISMISSED on timeliness grounds.
I.

BACKGROUND

On March 23, 2008, Newark police officers observed Earl McAuley with
drugs and a gun. McAuley pled guilty to one count of being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1). On June 30, 2009, the Court sentenced
McAuley to a 77 month term of imprisonment. On November 28, 2011, more than
two years after he was sentenced, McAuley petitioned to vacate his conviction
under 28 U.S.C. § 2255 (“Section 2255”).
II.

DISCUSSION

Section 2255 allows a defendant convicted of a federal crime to collaterally
challenge his conviction or sentence. See 28 U.S.C. § 2255. McAuley argues that
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his conviction should be vacated under Section 2255 due to ineffective assistance
of counsel. Recognizing that his claims are time-barred under Section 2255’s
statute of limitations, McAuley seeks to equitably toll, or extend, the limitations
period through traditional equitable principles and through a writ of audita querela.
McAuley also moves for discovery under Rules 6 and 7 of the Rules Governing
Section 2255 proceedings. In response, the Government argues that McAuley’s
petition is time-barred and not subject to equitable tolling. The Government also
argues that McAuley is not entitled to a writ of audita querela or discovery. The
Court agrees with the Government in all respects.
A.

MCAULEY’S PETITION IS UNTIMELY UNDER 28 U.S.C. §
2255(f)

Under Section 2255(f), McAuley had one year in which to collaterally attack
his conviction. The one year period began to run when McAuley’s “judgment of
conviction became final.” 28 U.S.C. § 2255(f)(1). 1 Since McAuley did not take a
direct appeal, his judgment of conviction became final for Section 2255 purposes
14 days after judgment was entered on June 30, 2009. See Antigua-Diaz v. U.S.,
No. 11-6082, 2012 WL 4194500, at *2 (D.N.J. Sept. 17, 2012) (“When a defendant
does not file a timely direct appeal, then the conviction and sentence become final,
and the limitations period begins to run on the date on which the time for filing
such an appeal expired.”) (internal quotation and citation omitted); Fed. R. App. P.
4(b)(1)(A)(i).2 Accordingly, McAuley had from July 14, 2009 until July 14, 2010
to collaterally attack his conviction under Section 2255. McAuley filed his petition
on November 28, 2011, after the statute of limitations expired.
B.

MCAULEY IS NOT ENTITLED TO A WRIT OF AUDITA
QUERELA

Attempting to overcome the fact that he filed his petition out of time,
McAuley asks the Court to issue a writ of audita querela equitably tolling the

1

Section 2255’s statute of limitation runs from the latest of four dates. McAuley does not
dispute that the limitations period in his case runs from when his judgment of conviction became
final.
2
At the time McAuley was sentenced, the Federal Rules of Appellate Procedure provided ten
days, excluding weekends and holidays, to take a direct appeal. U.S. v. Cobb, 432 Fed. Appx.
76, 78 (3d Cir. 2011).
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statute of limitations. The Court finds that McAuley is not entitled to a writ of
audita querela.
At common law, the writ of audita querela provided for “relief against a
judgment or execution because of some defense or discharge arising subsequent to
the rendition of the judgment.” Massey v. U.S., 581 F.3d 172, 174 (3d Cir. 2009).
(quoting U.S. v. Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990)). The writ is no longer
available in civil cases, but it is “available in criminal cases to the extent that it fills
in gaps in the current system of post-conviction relief.” Id. “[T]he fact that a
[Section] 2255 Motion is be time-barred does not create a ‘gap’ to warrant
extraordinary relief afforded under Audita Querela.” Arevalo v. U.S., No. 9-2923,
2009 WL 4015322, at *1 (D. Md. Nov. 18, 2009); see also U.S. v. Valdez-Pacheco,
237 F.3d 1077, 1080 (9th Cir. 2001) (“A prisoner may not circumvent valid
congressional limitations on collateral attacks by asserting that those very
limitations create a gap in the post-conviction remedies that must be filled by the
common law writs.”). Accordingly, a writ of audita querela cannot provide
McAuley with the equitable tolling he seeks. The Court will DENY the writ of
audita querela.
C.

MCAULEY IS NOT ENTITLED TO EQUITABLE TOLLING

McAuley also suggests that equitable tolling is warranted under traditional
equitable principles. McAuley is incorrect.
In certain circumstances, the one-year limitations period set forth in Section
2255(f) is subject to equitable tolling. Miller v. N.J. State Dep’t of Corrections,
145 F.3d 616, 619, n.1 (3d Cir. 1998). “A petitioner seeking equitable tolling
bears the burden to show that he diligently pursued his rights and that some
‘extraordinary circumstances stood in his way.’” McAleese v. Brennan, 483 F.3d
206, 219 (3d Cir. 2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
“The law is clear that courts must be sparing in their use of equitable tolling.”
Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999).
McAuley argues that he is entitled to equitable tolling because his lawyer
never followed through on a representation that he would “address [McAuley’s]
appeal rights fully.” Petition for Writ of Audita Querela at 8; ECF No. 4.3 Based
on the documents McAuley provided in connection with his petition for a writ of
audita querela, it appears that McAuley wrote his lawyer twice—once in 2009 and
once in 2010—asking about the status of his appeal. ECF No. 6. It appears that
McAuley never heard back.
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For purposes of this motion, the Court will construe McAuley’s lawyer’s representation to
encompass collateral challenges under Section 2255.
3

Even if McAuley’s two letters, spaced one year apart, constitute the due
diligence required for equitable tolling, McAuley has still failed to establish an
“extraordinary circumstance” that prevented him from filing a timely Section 2255
petition.
The Third Circuit considered the “extraordinary circumstance”
requirement in two cases, Seitzinger v. Reading Hosp. & Med. Ctr. and Schlueter v.
Varner, 384 F.3d 69 (3d Cir. 2004). In Seitzinger, a plaintiff filed an untimely
Section 2255 petition after discovering his attorney had lied about having filed the
petition. The Third Circuit granted equitable tolling. In Schlueter, a plaintiff filed
an untimely Section 2255 petition after his lawyer said he “would” file the petition
but never followed through. Schlueter, 384 F.3d at 72. The Third Circuit denied
equitable tolling. It noted that “[Schlueter’s] situation differs sharply from that of
the Seitzinger plaintiff who was misled by what the attorney said he had done, not
by what he said he would do.” Id. McAuley is like the plaintiff in Schlueter
because he was misled by what his lawyer said he would do—namely “address”
his appeal rights. As in Schlueter, the Court finds that there was no “extraordinary
circumstance” that prevented McAuley from timely filing a Section 2255 petition.
Accordingly, the Court will DENY McAuley’s request for equitable tolling.
D.

MCAULEY IS NOT ENTITLED TO DISCOVERY

Having found that McAuley’s petition is time-barred, the Court will DENY
his motions for discovery as moot. See U.S. v. Desivo, No. 9-2236, 2010 WL
2267080, at *9 (M.D. Pa. May 28, 2010) (denying motion for discovery where
court denied motion to vacate under Section 2255).
III.

CONCLUSION

For the foregoing reasons, the Court will DISMISS McAuley’s petition as
time-barred. It will DENY McAuley’s request for a writ of audita querela. And it
will DENY McAuley’s motions for discovery on mootness grounds. An
appropriate order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: February 19, 2013

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