NIEVES v. UNITED STATES OF AMERICA
Filing
4
OPINION fld. Signed by Judge Susan D. Wigenton on 8/25/16. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAXIMINO NIEVES,
Civil Action No. 16-3545 (SDW)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
WIGENTON, District Judge:
Presently before the Court is the amended motion of Maximino Nieves (“Petitioner”) to
vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 3). As
Petitioner has now filed his motion on the correct form, this Court is required to screen the motion
pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings and determine whether it
“plainly appears from the motion . . . that the moving party is not entitled to relief.” For the
following reasons, this Court will deny the motion as both time barred and without merit.
I. BACKGROUND
On October 26, 2007, “following a lengthy drug trafficking trial,” a “jury convicted
[Petitioner and his co-conspirators] of conspiracy to distribute more than five kilograms of cocaine,
in violation of 21 U.S.C. § 841(a) & (b) and 21 U.S.C. § 846. [One of Petitioner’s co-conspirators,
Domingo Hernandez] was also convicted of being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1).” United States v. Arzola, 360 F. App’x 287, 288 (3d Cir. 2010). “At
trial, the prosecution presented powerful evidence of a vast drug trafficking conspiracy beginning
in 1999 and ending in June 2005. Among other evidence, the prosecution presented the testimony
1
of numerous cooperating witnesses, substantial police surveillance of drug transactions, testimony
regarding controlled purchases, hundreds of recorded phone conversations by and among the
defendants, and physical evidence seized during an early morning raid of the conspiracy's stash
houses and the defendants' residences, including substantial quantities of cocaine; drug
paraphernalia such as cutting agents, scales, and drug ledgers; guns; and thousands of dollars in
cash.” Id.
Based on this conviction, this Court sentenced Petitioner to a term of 220 months
imprisonment on December 5, 2008. (Docket No. 06-659 at ECF No. 181). In reaching that
sentence, this Court rejected Petitioner’s argument that he should not receive a weapons
enhancement under U.S. Sentencing Guideline § 2D1.1(b)(1) because he did not himself possess
a gun, finding as follows:
[As to the gun enhancement,] clearly [Petitioner] did not possess a
weapon. And there was no indication from the Court’s perspective
that [Petitioner] had any conversations about weapons, as [defense
counsel] argued, or that [Petitioner was] involved with weapons.
But the conspiracy did [involve weapons]. And it goes back to, once
again, was it foreseeable? And I would argue that it was. I mean,
it’s foreseeable that essentially of the six people that were on trial,
four had weapons, based on the evidence and based on only the
testimony. And most importantly, [Petitioner’s co-conspirator and
close ally Hernandez] had one. I understand the circumstances
surrounding his weapon being that it was in a box in his home, and
he had just moved in[to] the home, or at least he was in the process
of moving. But there were weapons that were involved. So I think
it’s appropriate to give the enhancement.
(Docket No. 06-659 at ECF No. 183 at 25-26).
Following his sentence, Petitioner and several of his co-conspirators appealed. In his
appeal, Petitioner specifically argued that the imposition of the gun enhancement under §
2D1.1(b)(1) was improper. Arzola, 360 F. App’x at 289. The Third Circuit, however, rejected
that argument noting that the record “contained overwhelming evidence of guilt” and that
2
Petitioner’s arguments were “without merit” and warranted rejection “without further discussion.”
Id.
On or about June 8, 2016, some six years after Petitioner’s direct appeal was denied,
Petitioner filed his current § 2255 motion. (ECF No. 1). This Court administratively terminated
that motion on June 22, 2016, because Petitioner had failed to make use of the proper form. (ECF
No. 2). On or about July 13, 2016, Petitioner refiled his motion on the correct form and within the
time set by this Court in the June 22 Order. (ECF No. 3). In his amended motion, Petitioner
presents only one argument – that this Court erred in giving him a weapon enhancement under
Guideline § 2D1.1(b)(1) based on the conduct of his co-conspirators. (ECF No. 3 at 4). In making
that argument, Petitioner also attempts to argue that to do so is somehow improper under the
Supreme Court’s recent decision in Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551 (2015),
and that his motion to vacate is timely because it was filed within one year of Johnson.
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,
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
3
“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). Prior to ordering an answer to a § 2255 motion, Rule 4 of the Rules Governing Section
2255 Proceedings requires that the district court review a petitioner’s § 2255 motion 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 the rule, this 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
28 U.S.C. § 2255(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.” 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 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. For the reasons set forth
below, Petitioner’s motion is both untimely and without merit. As such, Petitioner is not entitled
4
to relief as a matter of law and no evidentiary hearing is therefore necessary for the resolution of
his motion.
2. Petitioner’s § 2255 is untimely and Petitioner has presented no basis for tolling
Petitioner filed his current motion some six years after the Third Circuit’s decision rejecting
his direct appeal, but suggests that his current motion is timely based on the recent Supreme Court
decision in Johnson. Section 2255 motions are subject to a one year statute of limitations. 28
U.S.C. § 2255(f). That limitation period begins to run at the latest of the following events: the
date on which the conviction becomes final, the date on which an impediment to making the
motion is 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 a Petitioner’s conviction
runs from the date on which his conviction became final, his conviction becomes final on the date
where his time for pursuing direct review, including a petition for certiorari, has run. 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). As Petitioner did not file a petition for certiorari,1 his conviction
became final ninety days after the Third Circuit denied relief, which occurred on January 14, 2010.
Arzola, 360 F. App’x at 287. Thus, Petitioner’s conviction became final on April 14, 2010, when
the time for filing a petition for certiorari had run. Kapral, 166 F.3d at 577. Given this date,
One of Petitioner’s co-conspirators, Domingo Hernandez, did file a petition for certiorari,
which was denied on October 4, 2010. See Henrandez v. United States, 562 U.S. 171 (2010).
Even if Petitioner were given the benefit of this October 2010 date, however, his current motion
would still be untimely by more than four years.
1
5
Petitioner’s one year limitation period had run as of April 14, 2011, absent some form of equitable
tolling.
In his amended motion, Petitioner argues that his statute of limitations should run from
June 26, 2015, the date on which the Supreme Court decided Johnson. Pursuant to 28 U.S.C. §
2255(f)(3), the one year limitation period will run from the “date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactive to cases on collateral review.” Although Johnson did announce a new
right, and has been made retroactive to cases on collateral review, see generally Welch v. United
States, --- U.S. ---, 136 S. Ct. 1257 (2016), Johnson provides no help to Petitioner for a very simple
reason – the claim he seeks to raise was not established by Johnson, and, indeed, has not been
established at all.
In Johnson, the Court held that “because the residual clause of the Armed Career Criminal
Act of 1983 (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), ‘combin[es] indeterminacy about how to
measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime
to qualify as a violent felony,’ it is unconstitutionally vague.” Welch, 136 S. Ct. at 1268 (Thomas,
J. dissenting). The Johnson Court thus struck down the residual clause of ACCA which permitted
Courts to deem a person a career offender based on crimes which were deemed crimes of violence
because they “otherwise involve[d] conduct that present[ed] a serious potential risk of physical
injury to another.” Johnson, 135 S. Ct. at 2555-58. Johnson thus effectively invalidated the
imposition of an ACCA sentence based solely on crimes deemed violent based on this residual
clause rather than because they met the other two criteria for being considered an ACCA offense.
Although courts have extended the holding of Johnson to cover statutes other than ACCA
which use language largely identical to ACCA to define “crimes of violence” or “violent crimes,”
6
see, e.g., United States v. Calabretta, --- F.3d ---, 2016 WL 3997215 (3d Cir. 2016) (striking down
similar language in the Career Offender Guideline); United States v. Dahl, --- F.3d ---, 2016 WL
4394538 (3d Cir. 2016) (applying Johnson categorical approach to similar language in federal sex
crimes enhancement guideline); United States v. Parnell, --- F. App’x ---, 2016 WL 3230697 (3d
Cir. 2016) (discussing similar language in 18 U.S.C. § 924(c)), Petitioner’s claim does not arise
out of a statute or Guideline containing a similar provision. Instead, Petitioner attempts to use
Johnson to attack his receiving a weapons enhancement under Guideline § 2D1.1(b)(1)2 where
there was no evidence that he, himself, carried a weapon, as opposed to one of his co-conspirators
using a weapon. (See ECF No. 1; ECF No. 3 at 4). Petitioner’s claim does not arise out of Johnson,
and his invocation of Johnson does not warrant a change to the date of the running of his statute
of limitations as Johnson did not first recognize the right Petitioner seeks to raise here. See 28
U.S.C. § 2255(f)(3). Because Johnson provides Petitioner no aid in avoiding the statute of
limitations, Petitioner’s motion remains time barred by approximately five years, and, absent some
form of equitable tolling, must be dismissed as such.
The statute of limitations applicable to § 2255 motions is subject 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)). In order to receive 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)). Mere excusable neglect is insufficient to warrant tolling of the statute of
2
That Guideline provides that, when sentencing a defendant for a drug trafficking offense, the
Court should “increase [the defendant’s offense level] by 2 levels” if “a dangerous weapon
(including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Clearly, this language lacks the
vagueness and indeterminacy which was at the heart of Johnson and its progeny.
7
limitations. United States v. Thomas, 713 F.3d 165, 174 (3d Cir. 2013). Petitioner has presented
no basis in his motion for the application of equitable tolling, and this Court can discern no basis
for more than five years of tolling based on the information provided. As such, Petitioner’s motion
to vacate sentence appears well and truly time barred and must be dismissed as such. While this
Court would normally be inclined to provide Petitioner an opportunity to argue tolling before
dismissing his motion as time barred, the Court need not do so here because it is clear that
Petitioner’s motion is utterly without merit and would need to be denied even were it timely
brought for the reasons discussed below.
3. Petitioner’s motion is improper and ultimately without merit
Before briefly discussing the merit of Petitioner’s claim, the Court must first note that a §
2255 motion “is not a substitute for an appeal” and therefore cannot “be used to relitigate matters
decided adversely on appeal.” Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1075 (3d
Cir. 1985). As such, § 2255 “may not be employed to relitigate questions which were raised and
considered on direct appeal.” United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993)
(internal quotations omitted); see also United States v Travillion, 759 F.3d 281, 288 (3d Cir. 2014)
(“issues resolved in a prior direct appeal will not be reviewed again by way of § 2255 motion”).
Petitioner has already challenged the imposition of a weapons enhancement on direct appeal, and
the Third Circuit rejected his claim as utterly without merit without further discussion. See Arzola,
360 F. App’x at 289. As Petitioner’s claim has already been rejected on direct appeal, it is not the
proper subject of a § 2255 motion, and thus is improperly raised here.
Even were Petitioner’s claim not improper, however, it would remain meritless. Pursuant
to Guideline § 1B1.3(a)(1)(B), conduct undertaken by one’s co-conspirators may form the basis
8
of an enhancement for a given defendant who did not engage in that conduct where the conduct
was within the scope of the conspiracy, in furtherance of that conspiracy, and reasonably
foreseeable in connection with the criminal activity. See also United States v. Thornton, 306 F.3d
1355, 1358 (3d Cir. 2002). Guideline § 2D1.1(b)(1) in turn provides that a drug offender shall
receive a 2 level sentence enhancement “if a dangerous weapon (including a firearm) was
possessed.” Thus, a member of a drug conspiracy can be given a weapons enhancement under
Guideline § 2D1.1(b)(1), as occurred here, so long as the reasonably foreseeable conduct of his
co-conspirators in furtherance of the conspiracy included the use of weapon or firearm sufficient
to warrant such an enhancement. Thornton, 306 F.3d at 1358. As this Court noted at sentencing,
the conduct of Petitioner’s co-conspirator and close ally, Hernandez, was more than sufficient to
warrant the weapon enhancement, and that Hernandez’s possession of the weapon was clearly
foreseeable given the nature of the drug trafficking conspiracy in which Petitioner and Hernandez
were engaged. (See Docket No. 06-659 at ECF No. 183 at 25-26). This Court likewise observed
that at least three other co-conspirators also possessed weapons in furtherance of the drug
trafficking conspiracy.
(Id.).
Thus, several of Petitioner’s co-conspirators used weapons,
including guns, within the scope and in furtherance of the conspiracy, in a manner which was
reasonably foreseeable, and thus it was entirely proper to impose a weapons enhancement on
Petitioner under the circumstances. Thornton, 306 F.3d at 1358. Petitioner’s claim that there was
no evidence to support the imposition of the enhancement upon him is thus utterly without merit.
As such, Petitioner’s § 2255 motion must be denied, and would need to be denied even if it had
been timely filed.
9
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 because jurists would not disagree that Petitioner’s sole
claim is improperly raised and utterly lacking in merit, Petitioner’s motion is inadequate to deserve
encouragement to proceed further and no certificate of appealability shall issue.
IV. CONCLUSION
For the reasons stated above, this Court will deny Petitioner’s § 2255 motion as time-barred
and meritless, and no certificate of appealability shall issue. An appropriate order follows.
Dated: August 25, 2016
_s/ Susan D. Wigenton_
Hon. Susan D. Wigenton,
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?