KENNY v. UNITED STATES OF AMERICA
Filing
10
OPINION fld. Signed by Judge Jose L. Linares on 1/6/16. (sr, )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIP J. KENNY,
Civil Action No. 14-6 100 (JLL)
Petitioner,
v.
:
OPINION
UNITED STATES OF AMERICA,
Respondent.
LINARES, District Judge:
Presently before the Court is the motion of Philip J. Kenny (“Petitioner”) to vacate, set
aside, or correct his sentence purportedly brought pursuant to either 28 U.S.C.
Writs Act, 28 U.S.C.
§
1651(a).
(ECF No. 1)
§
2255 or the All
Respondent, United States of America
(“Respondent” or “Government”), filed a response (ECF No. 4), to which Petitioner replied
(ECF
No. 5). Following a case conference in this matter, Petitioner filed a supplemental brief in suppor
t
of his motion (ECF No. 7), to which the Government has responded (ECF No. 9).
For the
following reasons, the Court denies the motion and no certificate of appealability shall issue.
I.
BACKGROUND
On October 6, 2009, Petitioner was charged by way of a one count indictment of conspi
racy
to commit extortion under color of official right in violation of the Hobbs Act, 18 U.S.C.
§
1951(a).
That same day, Petitioner pled guilty to that single count through a written plea
agreement.
(Criminal Action No. 08-75 8 at ECF No. 5). This Court therefore held a plea colloqu
y on October
6, 2009. (Document 3 attached to ECF No. 4 at 4). After questioning Petitioner and determ
ining
that he was knowingly and intelligently waiving his rights to a grand jury indictment and trial (id.
at 4-21), this Court oversaw the following colloquy which sets forth the factual basis for
Petitioner’s guilty plea:
[The Government:] From at least in or about March 2009 to in or
about May 2009, did you serve as the Operations Coordinator for
the Hudson County Board of Chosen Freeholders?
[Petitioner]: Yes.
[The Government]: During that period, did you successfully run
for election to the Municipal Council of Jersey City (Ward B) held
t1,
on or about May 1 2 2009?
[Petitioner]: Yes.
[The Government]: Prior to the election, is it true that you were
th
appointed to fill an open council seat on or about April 6 of 2009?
[Petitioner]: Yes.
[The Government]: During this period of time, did you agree to
accept and later accept approximately $5,000 from a cooperating
witness, who purported to be a real estate developer, who was
interested in development in the Greater Jersey City area?
[Petitioner]: Yes.
[The Government]: Did you agree to this corrupt payment in
exchange [for] your official assistance, action and influence as an
anticipated member of the Jersey City Municipal Council, in
attempting to obtain certain development approvals on behalf of the
[cooperating witness]?
[Petitioner]: Yes.
[The Government]: By way of example, on or about March 23”,
2009, did you meet with a Jersey City official and the [cooperating
witness] at a restaurant in Jersey City, New Jersey, where you agreed
to accept a $5,000 contribution to be issued in the form of two
checks with two different donor names, for $2,500 each?
2
[Petitioner]: Yes.
[The Government]: In exchange for this contribution, did you
agree to assist the [witness] in obtaining certain development and
zoning approvals on a property located at Garfield Avenue in Jersey
City, New Jersey?
[Petitioner]: Yes.
[The Government]: On or about March [30t1j, 2009, did you again
meet with the Jersey City official and the [witness] at a restaurant in
Jersey City, New Jersey?
[Petitioner]: Yes.
[The Government]: During the meeting, did you accept a corrupt
payment of $5,000 from the [witness] in exchange for your future
assistance and influence as a participating member of the Municipal
Council of Jersey City?
[Petitioner]: Yes.
[The Government]: Did the Jersey City official that attended these
meetings arrange your meeting with the [witness] and the
subsequent meeting in which you were paid this $5,000?
[Petitioner]: Yes.
[The Government]: Did you do all of these acts knowingly and
willfully, understanding that your actions were illegal?
[Petitioner]: Yes.
[The Government]: As a result of this scheme, did you personally
receive and accept a total of $5,000?
[Petitioner]: Yes.
[The Government]: Did you agree to forfeit the $5,000 to the
United States and admit that these proceeds constitute properties
that are subject to forfeiture?
[Petitioner]: Yes.
3
[The Government]: Your Honor, in addition to that factual
allocution, the United States would prove beyond a reasonable doubt
at trial, that the cooperating witness represented to [Petitioner] and
others involved in the conspiracy, that goods had traveled in
interstate commerce in his business and affected interstate
commerce. In other words, he did business outside of the State of
New Jersey as well as within.
(Document 3 attached to ECF No. 4 at 21-24). This Court thereafter sentenced Petitioner on May
4, 2010, to twelve months and one day in prison, two years of supervised release, and a $4,000
fine. (Document 4 attached to ECF No. 4).
After Petitioner was sentenced but before the date on which he was to surrender to the
Bureau of Prisons, this Court entered its opinion in United States v. Manzo, 714 F. Supp. 2d 486
(D,N.J. 2010), aff’d, 636 F.3d 56 (2011). In that case, this Court dismissed Hobbs Act charges
against individuals who had accepted money in exchange for future acts should the individuals be
elected to office. Id. at 500. That conclusion was based on this Court’s reasoning that as the
Manzo defendants were never elected, and therefore remained private citizens as opposed to public
officials throughout the conspiracy with which they were charged, the Manzo defendants actions
were not clearly within the terms of the Hobbs Act. Id. at 496, 500.
Following this Court’s ruling in Manzo and prior to Petitioner’s surrender, this Court held
a telephone conference on June 1, 2010.
(Criminal Action No. 09-758 at ECF No. 15, 19).
During that conference, counsel for Petitioner requested a stay of Petitioner’s sentence until the
Third Circuit decided the appeal in Manzo as counsel felt that the Manzo appeal might affect
Petitioner’s conviction. (Document 5 attached to ECF No. 4 at 4-5). During that conference,
this Court ordered supplemental briefing on Petitioner’s request for a stay. (Id. at 9). Petitioner
submitted his brief on the Manzo issue on June 10, 2010. (Criminal Action No. 09-758 at ECF
4
No. 16). The Government submitted its reply brief on June 11, 2010. (Criminal Action No. 09758 at ECF No. 17). On June 21, 2010, this Court issued an order denying the request for a stay
as Petitioner’s case was distinguishable from Manzo. (Criminal Action No. 09-758 at ECF No.
18). Petitioner appealed neither his sentence nor this Court’s order denying his request for a stay.
Petitioner therefore surrendered on June 21, 2010, and served his sentence. Petitioner was
released from prison on or about May 4, 2011. (ECF No. 4 at 4). Following his release from
prison, Petitioner hired a new attorney, James Lisa, Esq. On June 4, 2012, Lisa filed a motion
seeking the early termination of Petitioner’s period of supervised release. (Criminal Action No.
09-758 at ECF No. 21). This Court denied that motion on June 21, 2012. (Criminal Action No.
09-758 at ECF No. 24). Petitioner thereafter completed his two year term of supervised release
on or about May 3, 2013. (ECF No. 4 at 4). On September 23, 2014, Petitioner filed his instant
motion which he termed an “Application for Post Conviction Relief,” and which was originally
construed as a motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. (ECF No. I).
IL DISCUSSION
A. Legal Standard Applicable to
§ 2255 Motions
A prisoner in federal custody may file a motion pursuant to 28 U.S.C.
§ 2255 challenging
the validity of his 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.
5
28 U.S.C.
§ 2255.
Unless the moving party claims a jurisdictional defect or a Constitutional violation, in order
to be entitled to relief the moving party must show that an alleged 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. Horsley,
599 F.2d 1265, 1268 (3d Cir.) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.
denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454,458-59 (D.N.J.
2003).
B. Analysis
1. An evidentiary hearing is not required
An evidentiary hearing is required to resolve a motion to vacate under 28 U.S.C.
§ 2255
“unless the motion and files and records of the case conclusively show that the prisoner is entitled
to no relief.” 28 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, viewed in light of the
trial judge’s personal knowledge of a petitioner’s criminal case, conclusively negates the factual
predicates asserted by a petitioner or indicate that petitioner is not entitled to relief as a matter of
law, no hearing is required. Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d
Cir. 1985); see also Booth, 432 F.3d at 546. For the reasons set forth below, to the extent that
Petitioner’s motion is brought pursuant to
§ 2255 it is barred both as Petitioner was not in custody
at the time it was filed and the motion was filed beyond the one year statute of limitations, and to
the extent it arises as a writ of error coram nobis, Petitioner has failed to show the required sound
6
reasons for his failure to seek relief sooner. An evidentiary hearing is therefore not required to
resolve Petitioner’s motion.
2. To the extent that Petitioner’s application is a
§ 2255 motion, that motion is barred by
the statute of limitations and because Petitioner was not “in custody” at the time he filed his
motion
Initially, this Court notes that Petitioner does not specify in his initial motion the nature of
the type of motion he sought to bring before in this Court, i.e. whether his motion is brought
pursuant to
§
2255 or as a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C.
§
165 1(a). In his supplemental brief, however, Petitioner argues that this motion is subject to the
one year statute of limitations applicable to
§ 2255 motions and that the limitations period should
be equitably tolled. To the extent that Petitioner’s motion is brought pursuant to 2255, however,
§
this Court lacks the jurisdiction to hear Petitioner’s claims.
28 U.S.C.
§ 2255 provides that a “prisoner in custody under sentence of a court established
by Act of Congress.
.
.
may move the court which imposed the sentence to vacate, set aside or
correct the sentence.” 28 U.S.C.
subject matter jurisdiction under.
.
§ 2255(a). “This ‘in custody’ requirement is required for
.
28 U.S.C.
§ 2255(a).” Diarrassouba v. United States, Civ.
No. 12-2257, 2014 WL 546341, at *2..3 (D.N.J. Feb. 10, 2014). A federal prisoner remains “in
custody” during his custodial sentence and during any period of supervised release to which he is
sentenced. See, e.g., United States v. Baird, 312 F. App’x 449, 450 (3d Cir. 2008). Where a
sentence, including any term of supervised release, has fully expired, however, prior to the filing
of the habeas motion or petition, the petitioner is not “in custody” for the purposes of the statute
7
and therefore the district court lacks subject matter jurisdiction to hear his habeas petition. See
Maleng v. Cook, 490 U.S. 488, 492-93 (1989) (dealing with this issue in the context of a
§ 2254
petition); Diarrassouba, 2014 WL 546341, at *3 (stating that Maleng’s holding applies to
§ 2255
motions as well as
§ 2254 habeas petitions).
Here, Petitioner completed both his sentence and term of supervised release by May 2013.
Petitioner did not file his motion until more than a year later, in September 2014. As such,
Petitioner was clearly not “in custody” at the time he filed his motion as both his sentence and
supervised release had already fully expired. As such, this Court lacks subject matter jurisdiction
to hear his
§ 2255 claims, and to the extent that Petitioner’s motion arises in that context, this Court
will deny the motion for lack of jurisdiction. Maleng, 490 U.S. at 492-93; Diarrassouba, 2014
WL 546341, at *3
This Court additionally notes that, even were Petitioner in custody at the time he filed his
motion, his motion would also be time barred. Motions brought pursuant to
a one year statute of limitations. 28 U.S.C.
§ 2255 are subject to
§ 2255(f). The limitation period runs from the latest
of the following four events: the date on which Petitioner’s conviction becomes final, the date on
which an impediment to Petitioner’s making a motion is removed, the date on which the right from
which Petitioner’s claim arises is first recognized by the Supreme Court if Petitioner’s claim is
based on a newly recognized right which is retroactively applicable to cases currently on collateral
review, or the date on which the facts underlying the motion first became discoverable through
due diligence. 28 U.S.C.
§ 2255(f)(l)-(4). Where the statute runs from the date on which a
petitioner’s conviction became final, that conviction is final for petitioners who do not file a direct
appeal on “the date on which the time for filing.
8
.
.
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. 2014). In a criminal case, the 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). Even if
this Court were to give Petitioner the benefit of the time period during which counsel made his
Manzo motion, Petitioner’s conviction would have become final fourteen days after this Court
denied that motion on June 21, 2010, which results in a final date of July 5, 2010.’ Absent tolling,
then, Petitioner’s statute of limitations would have run on July 5, 2011, more than three years
before Petitioner filed this motion.
Petitioner argues, however, that he should be entitled to equitable tolling. “Equitable
tolling 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. Midgley, 142 F.3d 174, 179 (3d Cir.
1998)). To establish his entitlement to equitable 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 Pabon v. Mahanoy, 654 F.3d 385,
399 (3d Cir. 2011)).
Diligence in the
§ 2255 context is determined objectively, taking into
account a prisoner’s particular circumstances. Id.
Excusable neglect alone is insufficient to
warrant the tolling of the statute of limitations. United States v. Thomas, 713 F.3d 165, 174
(3d
Cir. 2013).
Petitioner argues that the running of the statute of limitations should instead be from the date
on which the Third Circuit affirmed Manzo. Petitioner provides no authority in support of this
position. As the statute itself permits the limitations period to begin later only as a result of
the
recognition of a newly established right pursuant to a decision of the United States Supreme
Court, see 28 U.S.C. § 2255(f)(3), and not from a decision of the circuit courts, Petitioner’s
argument is misguided.
9
In support of his contention that his situation warrants tolling, Petitioner argues that
Petitioner hired counsel in May of 2012 who failed to file anything on Petitioner’s behalf, and that
Petitioner suffered from depression and emotional issues during the three year period. As to the
first argument, this Court notes that Petitioner’s hiring of Mr. Lisa occurred nearly a year after the
statute had expired even giving Petitioner the benefit of the Manzo motion’s date as the date of
finality. Likewise, it is clear that Lisa did file a motion for termination of supervised release on
Petitioner’s behalf, and thus the argument that Lisa abandoned Petitioner appears to be without
merit.
As an attorney’s malfeasance or nonfeasance does not present an extraordinary
circumstance in a non-capital case, that argument provides Petitioner no aid in any event. See
2
United States v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008); see also Schlueter v. Varner, 384
F.3d 69, 76 (3d Cir. 2004). As to Petitioner’s second argument, that depression, anxiety, and the
stress and monetary troubles associated with losing two properties in Fall 2012 to Hurricane Sandy
“undoubtedly caused [Petitioner] difficulty,” the case law is clear that severe depression is
insufficient to warrant the tolling of the statute of limitations. See Hedges v. United States, 404
F.3d 744, 753 (3d Cir. 2005) (finding that apro se petitioner’s argument that he suffered severe
depression does not warrant equitable tolling as “mental incompetence, even rising to the level of
insanity, does not toll a federal statute of limitations for claims against the Government”). Thus,
Petitioner has presented no exceptional circumstances which would warrant equitable tolling.
Petitioner has also failed to show that he acted with reasonable diligence sufficient to
warrant tolling.
Petitioner allowed four years to pass before he attempted to challenge his
2
Petitioner has shown neither that Lisa actively misled him nor that Petitioner acted with
extreme diligence, and as such the exception to this rule does not apply here. See Bass, 268 F.
App’x at 199-200; Schleuter, 384 F3d at 76-78.
10
conviction on Manzo grounds, even though he should have been aware of the issue at least
at the
time his original counsel made the motion to stay Petitioner’s sentence on that ground Petitio
.
ner
did not file a direct appeal. Although he hired Lisa in 2012, that representation did not arise
until
after Petitioner had allowed an entire year to pass without filing a
§ 2255 motion. Even after
hiring Lisa, Petitioner thereafter sought only to have his period of supervised release
shortened
and to engage in state court litigation. The evidence in the record thus establishes that Petitio
ner
made no real efforts to challenge his conviction for some four years after he was senten
ced. As
such, this Court cannot find that Petitioner acted with reasonable diligence in pursuing
his rights.
As Petitioner has shown neither exceptional circumstances nor reasonable diligence,
he is not
entitled to equitable tolling and his motion would be time barred even if this Court had jurisdi
ction
to hear it under
3.
§ 2255.
Even if this Court construes Petitioner’s motion as a petition for a writ of error
coram
nobis, Petitioner is not entitled to relief
Although Petitioner’s being out of custody at the time he filed his motion prevents
this
Court from hearing his motion under
§ 2255, Petitioner is not completely without recourse to
challenge his conviction. Where a petitioner is no longer in custody but contin
ues to suffer
collateral consequences from his conviction, he may file a petition for a writ of
error coram nobis.
United States
i’.
Biondi, 600 F. App’x 45, 46 (3d Cir. 2015); see also United States v. Stonem
an,
870 R2d 102, 105-06 (3d Cir. 1989). A writ of error coram nobis, however,
“is an ‘infrequent’
and ‘extraordinary’ form of relief that is reserved for ‘exceptional circumstances
.” United States
v. Babalola, 248 F. App’x 409, 411 (3d Cir. 2007) (quoting Stoneman, 870 F.2d
at 106). Indeed,
11
as the Supreme Court has observed, the remedy of a coram nobis petition is so extreme that it “is
difficult to conceive of a situation in a federal criminal case today where [coram nobis relief]
would be necessary or appropriate.”
Carlisle v. United States, 517 U.S. 416, 429 (1996)
(quotations omitted).
As the Third Circuit has explained,
Because of the strong interest in finality of judgments, the
standard for a collateral attack on a conviction via a writ of error
coram nobis is more stringent than the standard applicable on a
direct appeal. indeed, because a defendant seeking coram nobis
relief has already completed her sentence, the interests in favor of
revisiting the judgment are even less than in the habeas context,
where the petitioner is still “in custody.” Thus, only where there
are errors of fact of the most fundamental kind, that is, such as to
render the proceeding itself irregular and invalid. can redress be
had, and relief will be granted only when circumstances compel
such action to achieve justice. Despite this heavy burden, both the
Supreme Court and [the Third Circuit] have reaffimed the continued
existence of coram nobis relief in the appropriate circumstances.
.
.
In addition to the cardinal requirement for issuance of the
writ that errors of.
the most fundamental kind had infected the
proceedings, this court has articulated several other threshold
considerations to coram nobis relief. A coram nobis petitioner
must also show that (1) he is suffering from continuing
consequences of the allegedly invalid conviction, (2) there was no
remedy available at the time of trial, and that (3) sound reasons exist
for failing to seek relief earlier. Of course, earlier proceedings are
presumptively correct and the petitioner bears the burden to show
otherwise.
.
.
Babalola, 248 F. App’x at 4 11-12 (internal quotations and citations omitted); see also Stoneman,
870 F.2d at 106, United States v. Osser, 864 F.2d 1056, 1059-62. Failure to establish any
of the
above elements will defeat a petition for coram nobis relief. Stoneman, 870 F.2d at 106.
Even if this Court were to assume that Petitioner’s inability to be publicly employed or
hold public office qualifies as a sufficient collateral consequence which this Court could allevia
te
12
by vacating his conviction, see Biondi, 600 F. App’x at 46-47, Petitioner has failed to show that
sound reasons exist to excuse his failure to seek relief earlier. The “‘sound reason’ standard is
even stricter than that used to evaluate
§ 2255 petitions.” Mendoza v. United States, 690 F.3d
157. 159 (2012), cert. denied, 133 S. Ct. 1456 (2013). As such, the “sound reason” standard
presents a higher bar than the one a petitioner must clear to show that he is entitled to equitable
tolling in the
§ 2255 motion context. See Id.; United States v. Glover, 541 F. App’x 148, 149-50
(3d Cir. 2013). The Third Circuit has therefore denied coram nobis relief to Petitioners who failed
to seek relief for four years, Mendoza, 690 F.3d at 159-60, and those who have attempted to argue
that mental incompetence presents a sufficiently “sound reason” for delay. Glover, 541 F. App’x
at 149-50. As this Court has explained above, in this case Petitioner allowed more than four years
to elapse between the date on which is conviction became final and the date on which he first
sought to challenge his conviction. The only reasons Petitioner provides to excuse that lengthy
delay, discussed above in the
§ 2255 context, would be insufficient to establish equitable tolling
in that context. As the sound reasons bar is higher than that required to warrant equitable tolling,
Petitioner has in turn failed to show that there were sound reasons for his delay in seeking relief.
As Petitioner has failed to show sound reasons for his delay in seeking relief, his motion, to the
extent that it arises as a coram nobis petition, must be denied. Stoneman, 870 F.2d at 106;
see
also Mendoza, 690 F.3d at 159-60; Glover, 541 F. App’x at 149-50.
IlL CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. §2253(c), Petitioner may not appeal from a final order in
a
proceeding under
§ 2255 unless Petitioner has “made a substantial showing of the denial of a
13
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 procee
d further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As this Court does not have jurisdi
ction to hear
Petitioner’s motion to the extent it arises under
under
§
§ 2255, Petitioner’s motion would be time barred
2255(f) were this Court to have jurisdiction under that statute, and Petitioner has
failed to
show sound reasons for his failure to seek relief earlier as required for coram nobis
relief, he has
failed to make a substantial showing that he was denied a constitutional right, and
no certificate of
appealability shall therefore issue.
IV. CONCLUSION
For the reasons stated above, Petitioner’s motion is DENIED, and no certific
ate of
appealability shall issue. An appropriate Order follows.
IT IS SO ORDERED.
DATED:
January 20l6
Hon. Jose L. Linares,
I United States District Judge
14
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