LINDSAY v. UNITED STATE OF AMERICA

Filing 11

OPINION fld. Signed by Judge Susan D. Wigenton on 11/1/16. (sr, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ADONIJAH LINDSAY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 16-3281 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is Petitioner Adonijah Lindsay’s amended motion to vacate
sentence brought pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence.
(ECF No. 1). Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, this Court is
required to screen the petition and determine whether it “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” For the reasons set forth below, this
Court will dismiss the petition with prejudice as time barred.

I. BACKGROUND
This Court previously summarized the basic factual and procedural history of this matter
in its opinion dismissing Petitioner’s motion to vacate sentence/petition for a writ of habeas corpus
as follows:
On July 24, 2006, Petitioner, Adonijah Lindsay, was charged
by way of a criminal complaint with conspiracy to obstruct, delay,
and affect interstate commerce in violation of 18 U.S.C. §

1951(b)(3) through the commission of several armed robberies
committed with his brother and others in New Jersey. (Docket No.
07-1032 at ECF No. 1). On November 28, 2006, then Magistrate
Judge Arleo issued a writ of habeas corpus ad prosequendum
directing the Morris County Jail in New Jersey to produce Petitioner
for a preliminary hearing in his federal criminal matter arising out
of that complaint. (Docket No. 07-1032 at ECF No. 11). The jail
produced Petitioner for that appearance, and Petitioner’s federal
criminal case continued until he was indicted on December 21,
2007, on several charges of conspiracy to obstruct, delay, or affect
interstate commerce by way of armed robbery related to the series
of armed robberies he had committed with his brother as well as
several federal weapons charges. (Docket No. 07-1032 at ECF No.
33).
On February 2, 2010, Petitioner pled guilty to two counts of
that indictment – interference with commerce by threat or violence
in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2 and knowing
and willful use and possession of a firearm in furtherance of a crime
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 18 U.S.C. § 2. (See
Docket No. 07-1032 at ECF No. 74). Petitioner was ultimately
sentenced to a total of 205 months imprisonment (121 months on
the interference with commerce charge and 84 months on the
weapons charge to be served consecutively) and Petitioner’s final
judgment of conviction was entered February 16, 2011. (See
Docket No. 07-1032 at ECF No. 74, 77). Petitioner filed an appeal,
and the Third Circuit Court of Appeals summarily affirmed
Petitioner’s conviction and sentence by way of an order issued on
July 13, 2012. (Docket No. 07-1032 at ECF No. 96). Petitioner
did not file a petition for certiorari, nor has Petitioner previously
filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
On May 31, 2016, Petitioner filed in the Third Circuit a pro
se filing which the Court of Appeals construed as petition for a writ
of habeas corpus, apparently brought pursuant to 28 U.S.C. § 2241.
(See Document 1 attached to ECF No. 1). On June 7, 2016, the
Third Circuit transferred that petition to this Court for lack of
jurisdiction. (Id.). In his petition, Petitioner present[ed] two
arguments – that Judge Arleo was without authority to issue the writ
of habeas corpus ad prosequendum directing the county jail to
produce him for his federal criminal case, and that the United States
Attorney was without authority to bring federal charges against him
because he was initially arrested on state charges. (ECF No. 1).
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(ECF No. 2 at 1-3).
On June 24, 2016, this Court entered an order and opinion screening Petitioner’s purported
habeas petition. (ECF Nos. 2-3). In that order and opinion, this Court concluded that Petitioner’s
habeas petition was improperly brought under 28 U.S.C. § 2241, and could only be considered as
a motion to vacate sentence under 28 U.S.C. § 2255. (ECF No. 2 at 3-5). Reconstruing
Petitioner’s habeas petition as a motion to vacate sentence, this Court ultimately concluded that
the claims that Petitioner wished to present were time barred absent some form of equitable tolling.
(Id. at 6-8). Because this Court perceived no basis for equitable tolling based on Petitioner’s
filings, this Court dismissed Petitioner’s habeas petition/motion to vacate as time barred, but did
so without prejudice, expressly permitting Petitioner to file a response within thirty days
addressing any tolling arguments he may have. (Id.).
On or about July 21, 2016, Petitioner submitted a response to the order and opinion. (ECF
No. 4). In his response, Petitioner sought, for the first time, to raise a claim pursuant to Johnson
v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015) (invalidating residual clause of the Armed
Career Criminal Act), asserting that the residual clause of 18 U.S.C. § 924(c) was
unconstitutionally vague, and that he was therefore actually innocent of one of the crimes for which
he was convicted – use and possession of a firearm in furtherance of a crime of violence. (Id.).
Petitioner argued that his “actual innocence” of one of the crimes for which he was convicted
would in turn allow him to bring his time barred claims, and that his statute of limitations should
run from the date of the Johnson opinion, rather than the date of his final conviction. (Id.).
Petitioner further argued that he should receive further tolling for the time between the filing of

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this Court’s dismissal opinion and his reception and filing of a response because of the delay in
the mail and some printing problems at the prison in which he is housed. (Id.).
Because Petitioner in his response stated that he wished to proceed under § 2255, this Court
entered an order administratively terminating this matter until such time as Petitioner had refiled
his response on the form required by the local civil rules on August 1, 2016. (ECF No. 5).
Following an extension of time granted by this Court (ECF No. 7, 9), Petitioner filed two responses
(ECF No. 8, 10), which used the correct form. This Court therefore construes Petitioner’s two
responses (ECF No. 8, 10) as setting forth Petitioner’s amended motion to vacate his sentence.
As before, Petitioner’s argument for escaping the time bar remains that his one year statute of
limitations should run from the date of the Johnson opinion, rather than the date on which his
conviction became final based on “actual innocence.” (ECF No. 10). In his amended motion,
Petitioner also asserts for the first time several claims of ineffective assistance of counsel and
several claims in which he asserts that his sentencing was improper. (Id.).

II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 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,
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set aside or correct the sentence.
28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional
violation, to be entitled to 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. Horsley,
599 F.2d 1265, 1268 (3d Cir. 1979) (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). Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, this Court must
preliminarily review Petitioner’s amended motion to vacate and “dismiss the motion” if it “plainly
appears from the motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief.” Pursuant to this rule, a district court is “authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994).

B. Analysis
1. An evidentiary hearing is not required to resolve Petitioner’s claims
A district court need not hold an evidentary hearing on a motion to vacate where “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, supplemented 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
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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 Pham,
587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because all of Petitioner’s claims are
time barred for the reasons discussed below, Petitioner’s amended motion to vacate sentence is
clearly without merit and no evidentiary hearing is necessary to resolve his claims.

2. Petitioner’s claims are time-barred
As this Court has previously explained, Petitioner’s motion to vacate sentence appears on
its face to be time barred:
Motions to vacate sentence are subject to a one year statute of
limitations which runs from the latest of several possible dates: the
date on which the petitioner’s conviction becomes final, the date on
which an impediment to making his motion is removed, the date on
which the Supreme Court first recognizes the claims raised where a
claim is based on a newly recognized right made retroactive to cases
on collateral review, or the date on which the facts supporting the
claim first could have been discovered through due diligence. 28
U.S.C. § 2255(f)(1)-(4). Because Petitioner’s claims are not based
on a newly recognized right, nor does Petitioner present any
evidence that the facts supporting his claim were not discoverable
or that any impediment prevented him from raising his claims,
Petitioner’s statute of limitation runs from the date on which his
conviction became final. Id. Where a petitioner files a direct
appeal, but does not file a petition for certiorari, that petitioner’s
conviction becomes final ninety days after the order of the Court of
Appeals dismissing his appeal, when the time for the filing of a
petition for certiorari has run. See Kapral v. United States, 166 F.
3d 565, 577 (3d Cir. 1999).
In this case, Petitioner filed a timely appeal, which was
dismissed when the Third Circuit summarily affirmed by way of an
order issued on July 13, 2012. (Docket No. 07-1032 at ECF No.
96). Petitioner’s conviction therefore became final ninety days
later, on October 11, 2012, when the time for filing a petition for
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certiorari had elapsed. Kapral, 166 F.3d at 577. Petitioner’s one
year statute of limitation had therefore run, absent some form of
equitable tolling, as of October 11, 2013. Petitioner did not file his
current petition with the Court of Appeals until the end of May 2016,
some two and a half years after the statute had run. Thus, unless
there is some basis to toll the statute for two and a half years,
Petitioner’s petition would be untimely as a motion to vacate
sentence, and would need to be dismissed as such. Id.
As noted, the statute of limitations for motions to vacate is
subject to equitable tolling where the circumstances so warrant.
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. Midgley, 142 F.3d 174, 179 (3d
Cir. 1998)). Tolling therefore only applies where a petitioner
shows “(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)). Excusable neglect is
insufficient to establish a basis for equitable tolling. United States
v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013).
(ECF No. 2 at 6-8).
In response to his time bar problem, Petitioner first argues that his claims should be
considered timely because he is actually innocent of one of the crimes for which he was convicted
– use of a firearm in furtherance of a crime in violation of 18 U.S.C. § 924(c). Petitioner bases
this argument on Johnson, and asserts that because Johnson first recognized the basis for this
claim, his statute of limitations should run from the date of Johnson’s filing. Even if Petitioner’s
Johnson argument accurately described the state of the law, Petitioner’s claims would not be
timely.
Pursuant to 28 U.S.C. § 2255(f)(3), one of the possible starting dates for the running of the
one year statute of limitations for a § 2255 motion is “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme
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Court and made retroactively applicable to cases on collateral review.” Under this section, a
petitioner’s one year limitations period runs from the date of the Supreme Court’s initial opinion
recognizing the right in question, and not from the date on which the Supreme or some other court
made that right retroactive to collateral review cases. See Dodd v. United States, 545 U.S. 343,
357-59 (2005). Petitioner claims that the right he raises was first recognized in Johnson. The
Court entered its opinion in Johnson on June 26, 2015. Petitioner did not raise his Johnson claim
for the first time until he filed his response to the dismissal of his petition,1 which he signed on
July 21, 2016, more than a year after the Johnson opinion was issued. As such, Petitioner’s
Johnson claim, to the extent that it had any merit, is itself time-barred absent equitable tolling as
it was first raised after one year had passed following the issuance of Johnson. Dodd, 545 U.S.
at 357-58.
Petitioner’s only argument for tolling the Johnson statute of limitations is that he did not
receive the Opinion and Order dismissing his initial habeas petition until July 14, 2016, and had
difficulty adjusting to the new prison to which he had been transferred shortly before that date.
He also suggests that his new prison limited law library time, and had printing issues in July.
These arguments, however, only deal with Petitioner’s ability to file a Johnson claim after this
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Petitioner does not argue that his Johnson claim should relate back to the date of the filing of
his initial application for a writ of error in the Third Circuit. Even if he had done so, however,
Petitioner’s Johnson claim would not relate back to that original filing date as his Johnson claim
is “separate in both time and type” from the jurisdictional claims raised in that first filing, and
thus does not “ar[i]se out of the [same] conduct, transaction, or occurrence” as his original
claims. See Mayle v. Felix, 545 U.S. 644, 655-664 (2005); see also Fed. R. Civ. P. 15(c)(2).
Because Petitioner’s Johnson claim is unrelated to his originally raised jurisdictional claims, that
claim does not relate back to the date of his original filing, and his Johnson claim for all time bar
purposes is considered to have first been raised with the filing of his response to the dismissal of
his original petition. Mayle, 545 U.S. at 655-64.
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Court’s June 24, 2016, order and opinion. As of June 26, 2016, the one year limitations period
had already expired, so for all but two days of the time Petitioner requests this Court toll his
Johnson period, that limitations period had already expired. Petitioner presents no basis for the
tolling of any of the time prior to the expiring of the one year Johnson limitations period other than
the final two days of that period, and even if this Court were to toll the one year period by those
two days, Petitioner’s July 21, 2016, filing date would still be well and truly time-barred by more
than three weeks.
Petitioner has presented no information suggesting that he was in any way barred from
raising his Johnson claim between April and June 2016, and has thus neither shown that he was
prevented from filing his Johnson claim in a timely fashion, nor that he pursued that claim
diligently once the Supreme Court made Johnson retroactive to collateral cases in Welch v. United
States, --- U.S. ---, 136 S. Ct. 1257 (2016) (filed April 18, 2016). As such, Petitioner has presented
no valid basis for the equitable tolling of the Johnson limitations period, and his Johnson claim is
time barred. See Pabon, 654 F.3d at 399 (Petitioner must show both extraordinary circumstances
preventing him from filing and diligence to warrant equitable tolling). Because his Johnson claim
is itself time barred, it provides Petitioner no basis for relief, and he is therefore not “actually
innocent” of his conviction for possession of a weapon in furtherance of a crime of violence.
Petitioner’s Johnson claim therefore does not provide a basis for tolling the statute of limitations
or act as a gateway claim for Petitioner’s remaining claims, which have all been time barred since
October 11, 2013, some two and a half years before Petitioner first filed his motion to vacate
sentence as a writ of error in the Court of appeals. As Petitioner presents no alternative basis for
the tolling of those two and a half years, those claims must also be dismissed with prejudice as
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time-barred. This Court must therefore dismiss Petitioner’s amended motion to vacate sentence
in its entirety with prejudice as time-barred.
Finally, this Court notes that even if Petitioner’s Johnson claim were not time-barred, it
still would not provide Petitioner with a basis for relief, and would not in turn therefore make him
“actually innocent” sufficient to qualify as a gateway for his time-barred claims, see, e.g.,
McQuiggan v. Perkins, --- U.S. ---, ---, 133 S. Ct. 1924 (2013) (holding that a convincing claim of
actual, factual innocence will act as a gateway to permit a court to hear time-barred claims if the
petitioner can present “evidence of innocence so strong that a court cannot have confidence in the
outcome of the trial unless the court is also satisfied that the trial was free of non[-]harmless
constitutional error”). This is because Petitioner’s Johnson claim is based on the faulty assertion
that Hobbs Act Robbery, to which he pled guilty, does not qualify as a crime of violence under the
elements clause of 18 U.S.C. § 924(c)(3). Because Hobbs Act Robbery is clearly a crime of
violence under the elements clause of § 924(c), Petitioner’s claim is without merit even if it were
true that Johnson’s invalidation of the Armed Career Criminal Act’s residual clause in turn
invalidated the non-identical residual clause of § 924(c). See, e.g., United States v. Hill, 832 F.3d
135, 140-145 (2d Cir. 2016) (Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) is a crime of
violence under elements clause and thus acts as a requisite crime of violence for a § 924(c)
conviction even if the residual clause is invalid); In re Fleur, 824 F.3d 1337, 1340-41 (11th Cir.
2016) (same); United States v. Howard, 650 F. App’x 466 (9th Cir. 2016, amended June 24, 2016)
(same); but see United States v. Parnell, --- F. App’x ---, 2016 WL 3230697 (3d Cir. June 13,
2016) (declining to decide whether Johnson invalidated residual clause of § 924(c) and declining
to determine whether Hobbs Act robbery qualifies as a crime of violence under the elements clause
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of § 924(c)(3) because the petitioner would still be subject to conviction as the crimes at issue
qualified as applicable drug trafficking crimes under § 924(c)(2)). Thus, even if Petitioner’s
Johnson claim were not time-barred, it would still be without merit as he pled guilty to the required
crime of violence such that his conviction pursuant to § 924(c) was proper and constitutional, and
he is thus not “actually innocent” of that crime. Hill, 832 F.3d at 140-45. Petitioner’s Johnson
argument is therefore without merit and provides no basis for tolling or avoiding the statute of
limitations as to his remaining claims, and his amended motion would be clearly time barred even
were his Johnson claim not itself time barred.

III. CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from
the final order in that proceeding unless he makes “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 conclusion that all of Petitioner’s claims are time-barred for the reasons expressed above,
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Petitioner has failed to make a substantial showing of the denial of a constitutional right. Id.
Petitioner shall therefore be denied a certificate of appealability.

IV. CONCLUSION
For the reasons stated above, Petitioner’s amended motion to vacate sentence (ECF Nos.
8, 10) shall be dismissed with prejudice as time barred, and Petitioner is denied a certificate of
appealability. An appropriate order follows.

Dated: November 1, 2016

__s/ Susan D. Wigenton______
Hon. Susan D. Wigenton,
United States District Judge

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