MANNA v. UNITED STATES OF AMERICA
Filing
17
OPINION. Signed by Judge Jose L. Linares on 12/21/16. (gh, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PETER MANNA,
Civil Action No. 14-84 (JLL)
Petitioner,
OPINION
V.
UNITED STATES OF AMERICA,
Respondent.
LINARES, District Judge:
Presently before the Court is the motion of Peter Manna (“Petitioner”) to vacate, set aside,
or correct his sentence brought pursuant to 28 U.S.C.
§ 2255.
(ECF Nos. 1, 3). Following an order
to answer, the Government filed a response to the motion (ECF No. 8), to which Petitioner has
replied. (ECF No. 10). For the following reasons, the Court will dismiss Petitioner’s motion to
vacate sentence as untimely, and will deny Petitioner a certificate of appealability.
I. BACKGROUND
On March 1, 2010, Petitioner, Peter Manna, pled guilty to possession with intent to
distribute more than fifly grams of cocaine base in violation of2l U.S.C.
and unlawful possession of a firearm in violation of 18 U.S.C.
§
§
$41(a)(1) & (b)(l)(A)
922(g)(l). (Docket No. 10-126
at ECF No. 19). This Court thereafter sentenced Petitioner to a total sentence of 121 months
imprisonment on May 18, 2011. (Docket No. 10-126 at ECF No. 24). Petitioner did not file a
direct appeal of his conviction or sentence. (Docket No. 10-126 Docket Sheet). On or about
December 30, 2013, Petitioner filed his current motion to vacate sentence pursuant to 28 U.S.C.
2255. (ECF No. 1).
§
II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 2$ U.S.C.
§ 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C.
§ 2255. Unless the moving party claims a jurisdictional defect or a Constitutional
violation, in order to merit relief the moving party must show that an error of law or fact constitutes
“a fundamental defect which inherently results in a complete miscarriage of justice, (or) an
omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horslev,
599 F.2d 1265, 126$ (3d Cir.) (quoting Hill v. United States, 36$ U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelii v. United States, 285 F. Supp. 2d 454, 45 8-59 (D.N.J.
2003).
B. Analysis
1. An evidentiary bearing is not required
28 U.S.C.
§ 225 5(b) requires an evidentiary hearing for all motions brought pursuant to the
statute “unless the motion and files and records of the case conclusively show that the prisoner is
entitled to no relief.” 2$ U.S.C.
§ 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir.
2005); United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented
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by the trial judge’s personal knowledge, conclusively negates the factual predicates asserted by the
petitioner or indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is
required.” Judge v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government
of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen
Quang Fliam, 587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. for the reasons set forth
below, Petitioner’s motion is clearly untimely based on the record before the Court and no
evidentiary hearing is therefore necessary for the resolution of his motion.
2. Petitioner’s
§ 2255 motion is untimely and Petitioner has presented no basis for equitable
tolling
The Government argues that Petitioner’s motion to vacate sentence must be dismissed as
it was untimely filed. Motions brought pursuant to 28 U.S.C.
statute of limitations. See 2$ U.S.C.
§ 2255(f).
§ 2255 are subject to a one year
The limitation period begins to run at the latest of
the following events: the date on which the petitioner’s conviction became final, the date on which
an impediment to making the motion was removed, the date on which the right asserted was
initially recognized by the Supreme Court if Petitioner’s claim is based on a newly recognized
right made retroactively applicable to cases on collateral review, or the date on which the facts
supporting the claim could first have been discovered through due diligence.
28 U.S.C.
§
2255(f)(1)-(4). Where the statute of limitations runs from the date on which a conviction became
final and the petitioner did not file a direct appeal, the petitioner’s conviction becomes final on
“the date on which the time for filing.
.
.
an appeal expired.” See Kapral v. United States, 166 F.
3d 565, 577 (3d Cir. 1999); see also United States v. Johnson, 590 F. App’x 176, 177 (3d Cir.
3
2014). A criminal defendant must file his notice of appeal within fourteen days of his sentencing.
Johnson, 590 F. App’x at 177; Fed. R. App. P. 4(b)(1)(A)(i).
In this matter, Petitioner does not contend that there was an impediment to his filing a
§
2255 motion,1 nor does he claim that the facts supporting his claim could not have been discovered
before the filing of his motion through due diligence. To the extent that Petitioner asserts that the
Court’s decision in Alleyne v. United States,
---
U.S.
---,
133 S. Ct. 2151 (2013), provides a later
start date for his limitations period, that assertion is without merit as the Supreme Court has not
madeAlleyne retroactive to cases on collateral review. See United States v. Reyes, 755 F.3d 210,
213 (3d Cir. 2014) (the “decision to make Alleyne retroactive rests exclusively with the Supreme
Court, which has not chosen to do so”). Thus, Petitioner has therefore not presented any valid
basis for the running of the one year limitations period from any date other than the date on which
his conviction became final.2 2$ U.S.C.
§ 2255(f)(1)-(4).
‘To the extent that Petitioner contends that his trial counsel refused to file a § 2255 motion on
his behalf, Petitioner confirms that he was infonned that his trial counsel was no longer his
attorney, and it is clear that counsel was under no obligation to file on Petitioner’s behalf. See,
e.g., Shelton v. Hollingsworth, Civil Action No. 15-1249, 2015 WL 2400750 at *3 (D.N.J. May
1$, 2015) (petitioner has no Sixth Amendment right to counsel in habeas proceedings). At any
rate, Petitioner could have filed such a motion pro se at any time, and counsel’s alleged failure is
insufficient to provide a basis for running the statute of limitations from a later date.
2
Any attempt by Petitioner to argue that his claim arose after his sentencing would also be
hindered by his admission in his Petition that the Fair Sentencing Act, which is the basis for his
claims “was already in effect” at the time of his sentencing. (ECF No. 1 at 4, emphasis in
original). Because this Court gave Petitioner the benefit of the modified sentencing guidelines
which followed from the Fair Sentencing Act at sentencing, any suggestion that the Supreme
132 S. Ct. 2321 (2012) (applying Fair
Court’s ruling inDorsey v. United States,
U.S.
Sentencing Act to those offenders who committed crimes prior to FSA enactment but who were
sentenced after its adoption), should affect the running of the limitations period would be without
merit as Petitioner essentially received the benefits that would have flowed from Dorsey at
sentencing. Because Dorsey was decided in June 2012, even if this Court were to give Petitioner
the benefit of Dorsey date as the onset of the one year statute of limitations, he would still be
time barred by some six months. As such, Petitioner is time barred for the reasons expressed
below regardless of whether his limitations period ran from the date his conviction became final
or the date on which Dorsey was issued.
---,
---
4
following the entrance of a guilty plea, Petitioner was sentenced by this Court on May 18,
2011. (Docket No. 10-126 at ECF No. 24). Petitioner, however, did not file a direct appeal.
(Docket No. 10-126 Docket Sheet). As such, his conviction became final for the purposes of
2255(f) fourteen days after he was sentenced, or on June 1, 2011.
§
His one year statute of
limitations had therefore run as ofJune 1, 2012. Petitioner, however, did not file his current motion
to vacate sentence until December 30, 2013, some eighteen months after the expiration of the one
year statute of limitations. (ECF No. I at 8).
Because the one year statute of limitations expired more than eighteen months before
Petitioner filed his motion to vacate sentence, his motion must be dismissed as time barred unless
Petitioner can show that he is entitled to eighteen months of equitable tolling of the statute of
limitations. The statute of limitations for
§ 2255 motions is subject to equitable tolling. Equitable
tolling, however, “is a remedy which should be invoked ‘only sparingly.” United States v. Bass,
268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midglev, 142 F.3d 174, 179 (3d
Cir. 1998)). In order to receive the benefit of such tolling, a petitioner must “show (1) that he
faced ‘extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised
reasonable diligence.” Johnson, 590 F. App’x at 179 (quoting Fabon v. Mahano, 654 F.3d 385,
399 (3d Cir. 2011)). Mere excusable neglect is insufficient to warrant tolling of the statute of
limitations. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Petitioner, in his motion
and reply brief, fails to present any valid basis for the equitable tolling of the statute of limitations,
and this Court perceives no such basis from the record in this matter. As Petitioner has failed to
show that he is entitled to equitable tolling, his motion is clearly time barred and must be dismissed
with prejudice as such.
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III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), a petitioner may not appeal from a final order in a
proceeding under § 2255 unless he has “made a substantial showing of the denial of a constitutional
right.” “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude that
the issues presented here are adequate to deserve encouragement to proceed further.” Miller-El V.
Cockrell, 537 U.S. 322, 327 (2003).
“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. McDaniel,
529 U.S. 473, 484 (2000). Because jurists of reason could not disagree with this Court’s ruling
that Petitioner’s motion is time barred and that he has failed to establish a basis for equitable
tolling, Petitioner’s motion is inadequate to deserve encouragement to proceed further and no
certificate of appealability shall issue.
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IV. CONCLUSION
For the reasons set forth above, this Court will dismiss Petitioner’s
§
2255 motion with
prejudice as time-barred, and will deny Petitioner a certificate of appealability. An appropriate
order follows.
Hoiylose L. Linares,
U{ted States District Judge
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