LINDSAY v. UNITED STATE OF AMERICA

Filing 21

MEMORANDUM OPINION; etc. Signed by Judge Susan D. Wigenton on 07/10/2018. (sms)

*NOT FOR PUBLICATION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)

MEMORANDUM OPINION

IT APPEARING THAT:
1. On May 31, 2016, Petitioner, Adonijah Lindsay, filed with the Third Circuit Court of
Appeals a document which that court construed to be a petition for a writ of habeas corpus brought
pursuant to 28 U.S.C. § 2241, which was subsequently transferred to this Court. (ECF No. 1).
2. 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.).

3. On or about July 21, 2016, Petitioner submitted a response to the dismissal of his
petition. (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
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.).
4. Because Petitioner stated in his response 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 construed Petitioner’s two
responses (ECF No. 8, 10) as setting forth Petitioner’s amended motion to vacate his sentence.
As before, Petitioner argued that he should be permitted to proceed notwithstanding the time bar
because his limitations period should have run from the date of the Johnson decision, and that
Johnson rendered him “actually innocent” sufficient to otherwise evade the time bar. Petitioner
also raised several new claims in these amended filings. (ECF Nos. 8, 10).
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5. On November 1, 2016, this Court entered an order and opinion dismissing Petitioner’s
amended motion to vacate as time barred. (ECF Nos. 10-11). In reaching that conclusion, this
Court determined that Petitioner’s Johnson claim was raised after the time for filing a Johnson
claim had run, that Petitioner’s Johnson claim did not relate back to the date of his original filing,
and that even if Petitioner’s Johnson claim were not itself time barred, it would still not prove his
“actual innocence” as the crime for which Petitioner was convicted, Hobbs Act Robbery, was a
crime of violence under the elements clause of § 924(c) and that Petitioner was therefore not
innocent of the § 924(c) offense even if Johnson had, indeed, invalidated the residual clause of §
924(c). (ECF No. 11 at 6-11, 8 n. 1). This Court therefore dismissed Petitioner’s amended
motion to vacate with prejudice and denied Petitioner a certificate of appealability. (Id. at 11-12).
6. On December 5, 2016, Petitioner filed with this Court a motion for reconsideration
brought pursuant to Federal Rule of Civil Procedure 59(e). (ECF No. 13).
7. This Court denied that motion by way of an order and opinion issued on January 30,
2017. (ECF Nos. 14-15).
8.

Petitioner thereafter appealed, and the Third Circuit denied him a certificate of

appealability on July 7, 2017, finding that
Jurists of reason would not find it debatable . . . that appellant’s
motion to vacate sentence pursuant to 28 U.S.C. § 2255 was
untimely filed[;] that his claim pursuant to Johnson v. United States,
135 S. Ct. 2551 (2015), does not “relate back”; that equitable tolling
was unwarranted; and that his actual innocence argument is
insufficient under McQuiggan v. Perkins, 133 S. Ct. 1924, 1928
(2013), to serve as a gateway through which he may overcome the
statute of limitation, see United States v. Robinson, 844 F.3d 137,
151 (3d Cir. 2016).
(ECF No. 18 at 2).
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9. More than a year and a half after this Court dismissed Petitioner’s § 2255 motion as
time barred and some fifteen months after this Court denied Petitioner’s reconsideration, Petitioner
filed his current motion in which he seeks relief from the dismissal of his § 2255 motion pursuant
to Rule 60(b)(4) and 60(b)(6). (ECF No. 20). In his motion, Petitioner essentially argues that
Sessions v. Dimaya, --- U.S. ---, 138 S. Ct. 1204 (2018), presents an intervening change in the law
that is either sufficient to reset the running of the statute of limitations as to Petitioner’s Johnson
claim or is sufficient to render Petitioner “actually innocent” of one of the crimes of which he was
convicted and should thus permit him to evade the time bar in any event.
10. Rule 60(b) allows a party to seek relief from a final judgment, and request reopening
of his case, under a limited set of circumstances including fraud, mistake, and newly discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005). “The remedy provided by Rule 60(b)
is extraordinary, and special circumstances must justify granting relief under it.”

Jones v.

Citigroup, Inc., Civil Action No. 14-6547, 2015 WL 3385938, at *3 (D.N.J. May 26, 2015)
(quoting Moolenaar v. Gov’t of the Virgin Islands, 822 F.3d 1342, 1346 (3d Cir. 1987). While
Rules 60(b)(1)-(5) permit reopening a judgment for specific, enumerated reasons including fraud
or mistake, Rule 60(b)(6) permits a party to seek relief from a final judgment for “any . . . reason
that justifies relief.” “The standard for granting a Rule 60(b)(6) motion is a high one. The
movant must show ‘extraordinary circumstances’ to justify reopening a final judgment.” Michael
v. Wetzel, 570 F. App’x 176, 180 (3d Cir. 2014) (quoting Gonzalez, 545 U.S. at 536). “[A]
showing of extraordinary circumstances involves a showing that without relief from the judgment,
‘an “extreme” and “unexpected” hardship will result.’” Budget Blinds, Inc. v. White, 536 F.3d
244, 255 (3d Cir. 2008) (quoting Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977)).
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11. In his current motion, Petitioner attempts to assert a claim not raised in his previously
dismissed motion to vacate sentence – that the Supreme Court’s recent decision in Dimaya presents
an intervening change in the law which renders one of his convictions non-criminal. In Gonzalez,
the Supreme Court held that where a petitioner’s Rule 60(b) motion contains a new claim for relief
which was not presented in the petitioner’s original habeas filing, such as a claim arising out of “a
subsequent change in substantive law” or a new rule of law made retroactive to collateral review
cases, that motion, although styled as a Rule 60(b) motion, is, in fact, a second or successive habeas
petition which must be dismissed unless the petitioner has first secured leave from the appropriate
Court of Appeals. 545 U.S. at 530-32; see also 28 U.S.C. § 2255(h). Because Petitioner’s claim
that Dimaya renders him actually innocent was not contained in his previous petition, his current
Rule 60(b) motion is in fact a second or successive § 2255 motion brought without leave of the
Court of Appeals, and this Court must therefore dismiss Petitioner’s Rule 60(b) motion without
prejudice.1
12. Even were this Court to construe Petitioner’s motion not to be raising a new claim
pursuant to Dimaya but instead to be merely reiterating the same Johnson claim that this Court
previously dismissed as time barred with Dimaya as added support, however, Petitioner would still
not be entitled to relief on his Rule 60(b) motion. To the extent Petitioner asserts that his claims

Because Petitioner’s Dimaya claim is not based on any new evidence and because the Supreme
Court has not held Dimaya to be a new rule of constitutional law of retroactive application,
Petitioner’s Rule 60(b) motion/second or successive motion to vacate sentence cannot meet the
gatekeeping requirements of § 2255(h) which would permit the Court of Appeals to grant him
leave to proceed, as such this Court finds it would not be in the interests of justice to transfer
Petitioner’s motion to the Third Circuit for consideration as a petition for leave to file a successive
motion to vacate. See, e.g., United States v. Hawkins, 614 F. App’x 580, 582 (3d Cir. 2015).
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are now timely because the Dimaya decision was issued less than one year ago, the Court notes
that a new Supreme Court decision will only reset a prisoner’s § 2255 statute of limitations when
that Supreme Court decision recognized a new rule of constitutional law and the decision is “made
retroactively applicable to cases on collateral review.” See 28 U.S.C. § 2255(d)(1)(C). Dimaya
did not announce a new rule of constitutional law – the Court in issuing that decision specifically
stated that Dimaya was no more than a “straightforward application” of the rule announced in
Johnson. See 138 S. Ct. at 1213. Thus, the case did not introduce a new rule of law but merely
applied Johnson. As such, and because Dimaya has not been rendered retroactive to collateral
review cases, Dimaya does not save Petitioner’s § 2255 claims from being time barred.
13. Likewise, Petitioner’s “actual innocence” claim is not improved by the ruling in
Dimaya. As this Court explained to Petitioner, and as the Third Circuit reiterated in denying
Petitioner a certificate of appealability, Hobbs Act Robbery, the “crime of violence” of which
Petitioner was convicted, is categorically a crime of violence under the element’s clause of 18
U.S.C. § 924(c)(3), and thus Petitioner is not actually innocent even assuming arguendo that
Johnson and Dimaya render the residual clause of § 924(c)(3)(B) unconstitutionally vague. See
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); Robinson, 844 F.3d at 151 (Fuentes, J., concurring). (See also
ECF No. 18 at 2). Thus, Petitioner is not “actually innocent” of the § 924(c) charge even assuming
Dimaya renders § 924(c)(3)(B) void for vagueness, and Petitioner’s Rule 60(b) motion is utterly
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without merit.
14. In conclusion, Petitioner’s motion to vacate judgment (ECF No. 20) is DISMISSED
WITHOUT PREJUDICE to the extent it represents a second or successive § 2255 motion and is
DENIED to the extent it is properly brought pursuant to Rule 60(b). An appropriate order follows.

Dated: July 10, 2018

s/ Susan D. Wigenton___
Hon. Susan D. Wigenton,
United States District Judge

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