JONES v. UNITED STATES OF AMERICA
Filing
13
MEMORANDUM OPINION and ORDER that the Clerk shall strike Defendant/Petitioner's application filed as ECF No. 198 in United States v. Jones, Crim. Action No. 10-0366, by making a new and separate entry on the docket of that matter reading, &qu ot;APPLICATION DOCKETED AS DOCKET ENTRY No. 198 IS STRICKEN FROM THE DOCKET AS FILED INVIOLATION OF THE MILLER BAR AND THIS COURT'S GUIDANCE PROVIDED IN DEFENDANT'S CIVIL ACTION No. 14-1557, etc; that no additional allegations, be th ey factual or legal, shall be raised by Defendant/Petitioner in Jones v. USA, Civil Action No. 14-1557, etc; that Defendant/Petitioner future attempts to raise additional allegations in Jones v. USA Civil Action No. 14-1557, be these allegations factual or legal, shall be construed as contempt of court, and sanctions may be applied to Defendant/Petitioner. Signed by Judge William H. Walls on 10/28/14. (jd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEy
UNiTED STATES OF AMERICA,
Crim. Action No. 10-0366 (WHW)
Plaintiff
V.
KELVIN JONES,
Defendant
KELVIN JONES,
Civil Action No. 14-1557 (WHW)
Petitioner,
V.
UNITED STATES OF AMERICA,
N
2D1LMOPIQ
AND ORDER
Respondent.
These two matters are before the Court upon a filing made by Kelvin Jones
(“Jones” or “Defendant/Petitjoner) That filing was: (a) made in Jones’ long-closed
criminal matter,
tsv Jones Crim. Action No. 10-0366 (WHW); and (b) titled
“Defendant’s Supplemental Arguments and Additional Evidence in Support of New Trial
Motion.” See Id., ECF No. 198.
Following a jury trial, Jones was convicted of armed robbery, conspiracy to
commit armed robbery, possession of a firearm in firtherance of a crime of violence and
Conspiracy to transport stolen goods in interstate commerce
He was sentenced to a term of 195 months. See id. at 2.
Id., ECF No. 143, at 1.
Jones appealed his conviction arguing that this Court “erred in failing to reopen
an evidentiary hearing regarding a search of his jail cell before trial, and that [this] Court
constructively amended the firearm charge through its instructions to the jury.”
,
ECF
No. 195-2, at 2. The Court of Appeals dismissed Jones’ claims, Sc. j4, ECF Nos. 195-1
and 195-2, at 2.
On March 10, 2014, Jones submitted his initial Section 2255 motion. See id.,
ECF dated March 10, 2013. Although he erroneously filed that motion in his underlying
criminal matter, the Clerk duly corrected Jones’ error and commenced a proper civil
action. See Jones v. USA, Civil Action No. 14-1557 (WHW), ECF No. 1. Because this
District adopted a new Section 2255 form containing a notice advising litigants if their
rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999), this Court directed the
Clerk to serve Jones with such new form to enable Jones’ filing of an amended Section
2255 motion containing all his habeas allegations.
id., ECF No. 2.
The Clerk complied with this Court’s order, but Jones did not.
Ignoring the
habeas form served upon him, Jones filed two documents, one titled “Notice of Filing of
Additional Supplemental Pages.
.
.“
and another titled “Affidavit.
.
.
in Support,” j4,
ECF Nos. 3 and 4, and accompanied those documents by an application promising to file
“supplemental pages” in sixty days.
I4, ECF No. 5.
Presuming that Jones, a pç se litigant, might have misunderstood this Court’s
directive, the Court ordered the Clerk to re-serve Jones with the District’s new habeas
form and extended Jones’ time to file his amended Section 2255 motion by sixty days.
$ id., ECF No. 6. In response, Jones filed his first amended Section 2255 motion
containing fifteen claims disguised as ten: because his “ground one” contained six
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different “suh-grounds.’
See id.. ECF No. 7. at 5. That “ground one” was unsupported
by a factual predicate: rather, it contained a promise that “[t]he supportive facts will be
detailed and argued in [Jones’] Memorandum Brief
date that Jones would select].”
Id.
.
.
.
to be tiled [on an unspecified
Because Jones’ amended Section 2255 motion
violated Habeas Rules 2(c)( I ) and (d). this Court explained to Jones that a pleading
containing “umbrella” grounds was unacceptable.
This
Court
id., ECF No. 9. at 2.
also pointed out that
[Jones ] mode of litigation, as evidenced by his latest filing, causedj this
epeated promises to submit
court grave concern because [Jones’]
“supplemental pages” or “supportive facts” in the future[] operate[d] as de
facto self-grants of extension of time that rna[d]e a mockery of the
limitations penod, usurp[ed] this Court’s powers and ohstruct[ed]
Indeed, [Jones’] litigation tactics
adjudication of [Jones’] claims.
prevent[ed} this Court from directing [the Government’s] answer and
render[ed the Government’s] timely answer impossible because [Jones’]
promises to file more “pages” and to assert more “facts” in the future
invite[ed the Government] to shoot at a moving target.
Id. at 2-3.
This Court’s order closed with an unambiguous statement that
[Jones would] be allowed one final opportunity to submit his all-inclusive
Section 2255 motion, and he [was] strongly encouraged to do it in good
faith.
Id. at 3 (emphasis supplied).
On August 7, 2014, Jones submitted his second amended Section 2255 motion; it
contained his averment that he: (a) was aware of his Miller rights; and (b) stated all his
allegations. See id., ECF No. 10, at 25. Relying on that averment, this Court directed the
Government to respond to Jones’ allegations. See j4, ECF No. 11. This Court’s was
issued on September 2, 2014, and allowed the Government forty-five days to respond.
See id. at 1.
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Twenty eight days passed by.
On September 30, 2014, the Clerk received Jones’ filing at bar titled “Defendant’s
Supplemental Arguments and Additional Evidence in Support of [Section 2255] Motion.”
See USA V. Jones, Crim. Action No. 10-0366, ECF No. 198 (“Unauthorized Filing”).
This forty-four page Unauthorized Filing was made in Jones’ long-closed criminal
matter, but it raised a multitude of additional allegations for the purposes of his currentlylitigated civil action. See j4 Apparently striving to circumvent Jones’ Miller averment
made in his second amended Section 2255 motion, the Unauthorized Filing maintained
that “[n]o new grounds [were] alleged.”
jç at 2. That statement was in direct
contradiction to the content of the Unauthorized Filing. See id.
This Court already warned Jones that his litigation tactics would not be tolerated
because his practice of adding new allegations and factual predicates required the
Government to “shoot at a moving target.” See Jones v. USA, Civil Action No. 14-1557,
ECF No. 9, at 2.’ This Court already explained to Jones that, under Miller, his second
amended Section 2255 motion had to be his all-inclusive pleading and no further
allegations, be they factual or legal, would be allowed. $ç id., ECF No. 11, at 1.
As the Unauthorized Filing demonstrates, this Court’s guidance fell on deaf ears.
When Jones was provided with the Miller notice, nothing prevented him from
incorporating the assertions he made in the Unauthorized Filing into his second amended
Section 2255 motion. He did not do so. With that, he lost his opportunity to raise these
assertions in Jones v. USA, Civil Action No. 14-1557. See 28 U.S.C.
§ 2244(b)(3)(A)
and (d)).
A fortiori. Jones’ submission of the Unauthorized Filing in his long-closed criminal matter is wholly
unacceptable because the Government (engaged in litigation of Jones, Civil Action No. 14-1557, not Jones,
Crim. Action No. 10-0366) was not put on notice about Jones’ submission of the Unauthorized Filing.
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To prevent the [self-serving] ignorance [underlying Jones’ Unauthorized
Filing that aims to add new allegations and factual predicates], the Third
Circuit requires district courts to inform [federal habeas] petitioners of the
procedural and other limitations imposed by the AEDPA. Accordingly, by
[Miller notice contained in this District’s new form,] this Court informed
[Jones] that his [second amended Section 2255 motion had to] include all
available federal claims.
[Jones] had actual notice of the limitations.
imposed by the [law]. Accordingly, he cannot show that some
extraordinary circumstance stood in his way and prevented him from
presenting his [newly-minted assertions in his second amended Section
2255 motion].
.
.
.
Boretsky v, Ricci, No. 09-0771, 2012 U.S. Dist. LEXIS 37239, at *12.44 (D.N.J. Mar.
20, 2012), For these reasons,
IT IS onthis
0
day
2014,
ORDERED that the Clerk shall strike Defendant/Petitioner’s application filed as
ECF No. 198 in United States v. Jones, Crim. Action No. 10-0366, by making a new and
separate entry on the docket of that matter reading, “APPLICATION DOCKETED AS
DOCKET ENTRY No. 198 IS STRICKEN FROM THE DOCKET AS FILED IN
VIOLATION OF THE MILLER BAR AND THIS COURT’S GUIDANCE PROVIDED
IN DEFENDANT’S CIVIL ACTION No. 14-1557”; and it is further
ORDERED that Defendant/Petitioner shall make no further filings in United
States v. Jones, Crim. Action No. 10-0366. If such filings are made, the Clerk shall strike
them from the docket without further notice to Defendant/Petitioner; and it is further
ORDERED that no additional allegations, be they factual or legal, shall be raised
by Defendant/Petitioner in Jones v. USA, Civil Action No. 14-1557.
Defendant/
Petitioner’s traverse, if such is filed, may reflect on, and only on, the factual predicates he
already asserted in his second amended Section 2255 motion and/or on the legal
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argumen the Govemnient raises in its answer to his second amended section 2255
motion; and it is further
ORDERED that Defendant/petjtjoner
allegations i
future attempts to raise addjtjonaj
fles v. USA Civil Action No. 14-1557, be these allegations factual or
legal, shall be consted as contempt of court, and sanctions may be applied to
Defendant,/petjtioner if warranted; it is finally
ORDERED that the Clerk shall selve this Memorandum Opinj and Order Upon
Defendant/Petitioner by regular
u.s.
mail and upon Respondent in
UeSV
USA Civil
Action No. 14-1557, by means of electronic delivery
District Judge
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