WARD v. UNITED STATES OF AMERICA
OPINION fld. Signed by Judge William H. Walls on 10/18/16. (sr, )(N/M)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DAVID JAMES WARD,
HONORABLE WILLIAM H.
No. 16—4101 CWHW)
UNITED STATES OF AMERICA,
David James Ward, Petitioner pro se
United States Penitentiary
P.O. Box 24550
Tucson, AZ 85734
Senior District Judge:
This matter comes before the Court on the motion by David
James Ward to vacate,
or correct his federal
For the reasons expressed below,
this Court will
dismiss the petition for lack of jurisdiction,
certificate of appealability shall issue.
The circumstances of Petitioner’s offense were set forth in
a prior opinion of this Court and are reproduced here:
1995, while employed as a commercial
On December 4,
tractor—trailer truck driver, Ward abducted a 24—year—
old woman. He met the victim while she was working as a
waitress and bartender in Mahwah, New Jersey. As the
victim left the bar for the night, Ward jumped on her
back and threw her to the ground. He wrapped her head
and legs with duct tape and bound her hands and feet
with plastic cuffs. Ward carried the victim to his truck
which was parked nearby. Over the next three days, Ward
kept the woman captive in his truck and repeatedly
sexually assaulted her. Ward continued to make scheduled
deliveries and pick—ups in different states including
New York and Indiana.
On December 7, Ward and the victim arrived at a truck
stop in Indianapolis. Ward left his truck, telling the
victim he would return shortly. After Ward left, the
victim watched to make sure that he was out of the area.
She was able reach a nail clipper in the ashtray in the
front cabin. She used the clipper to cut the plastic
cuffs on her ankles, but was unable to remove the cuffs
that bound her wrists. She jumped out of the truck and
after several unsuccessful attempts to get help, she
obtained aid from a man who notified a security guard.
In the meantime, Ward fled the scene.
The victim described Ward’s truck to police who were
able to locate it in Illinois via a global positioning
satellite system; Ward was arrested by the Illinois
United States v.
A federal grand jury indicted Ward on one count of
kidnapping in violation of 18 U.S.C.
§ 1201 in January 1996.
Petitioner pled guilty to the indictment in July 1996.
Application for Permission to Enter Plea of Guilty,
24 of the application twice noted that Ward understood that he
faced a maximum sentence of life imprisonment.” Ward,
See 28 U.S.C. § 2255 Rule 4(b) (permitting examination of “the
record of prior proceedings” in the court’s initial review).
2d at 481. A letter from the United States Attorney
informed Petitioner a month before his plea that “the judge may
impose the maximum term of imprisonment and that a violation of
‘carries a statutory maximum penalty of life
The letter also warned that the Sentencing
Guidelines might authorize a departure from the minimum and
maximum penalties. Ward signed a document acknowledging that he
received the letter,
read and understood it.” Ibid.
On January 7,
this Court departed from the
guidelines due to the multiple acts of criminal sexual abuse and
sentenced Petitioner to 720 months incarceration.
and the Third Circuit affirmed the sentence on
United States v.
131 F.3d 335
Petitioner did not file a petition for writ of
Petitioner filed a petition for writ of habeas
corpus under 28 U.S.C.
§ 2241 arguing his detention was
unconstitutional because he did not knowingly and voluntarily
enter his guilty plea and because he had ineffective assistance
This Court noted that 28 U.S.C.
§ 2255 is the
presumptive means by which federal prisoner could challenge
The matter was remanded to this Court in order to make findings
under the Violence Against Women Act as to whether Petitioner
had to undergo blood testing for AIDS. Ward, 131 F.3d at 337.
their convictions and sentences and that Petitioner had not
demonstrated that § 2255 was inadequate or ineffective.
2008 WL 2622785
As the one-year statute of limitations under § 2255 had
long since expired by the time the petition was filed,
denied the motion.
Petitioner did not appeal. Over the next
Petitioner filed a variety of motions seeking to
‘correct” his sentence;
all of the motions were denied.
the instant § 2255 motion on July 7,
Petitioner raises three grounds for relief:
sentencing court lacked jurisdiction over the matter as the
elements of rape and/or sexual assault were not presented to the
the departure of the sentence from the guideline
range of 210-262 months violated the Ex Post Facto Clause
because rape and/or sexual assault were not charged in the
the sentence is unconstitutional because
the guidelines were mandatory at the time of sentencing.
Petition ¶ 12.
SThNDAD OF REVIEW
Petitioner brings this § 2255 motion as a pro se litigant.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers.
pro se § 2255 motion and any supporting submissions must be
Construed liberally and with a measure of tolerance
878 F.2d 714,
151 F.3d 116,
414 F.2d 552,
United States v.
a federal district court must dismiss a § 2255
motion if it appears from the face of the motion that the
petitioner is not entitled to relief
§ 2255 Rule 4.
This is approximately Petitioners sixth challenge to his
Before this Court may Consider a second or successive
§ 2255 motion,
Petitioner must obtain an order of authorization
from the Third Circuit.
Rule 9. As Petitioner has not obtained such an order,
must either dismiss the motjo or transfer it to the Third
See United States v. Ward, 760 F. Supp. 2d 480 (D.N.j. 2011)
(denying motion to correct sentence based on claim that
Possit of “criminal enhancements were not mentioned in the
plea agreeme or at plea hearing); Ward v. United States, No.
11-4944 (D.N.J. Sept. 26, 2011) (denying § 2255 motion)
No. 12-1111 (3d Cir. Apr. 5, 2012) (denying certific
aPpealability as motion should have been dismissed as
unauthorized second or successive motion); Ward v. Martinez, No.
10-1228 (M.D. Pa. Nov. ic, 2010) (dismissing challenge to guilty
plea as improperly brought under § 2241); Ward v. Martinez No.
10-0418, 2010 WL 1379591 (D.N.J. Mar. 29, 2010) (dismissing
challenge to sentencing court’s jurisdic0 as improper under §
2241 and untimely under § 2255); Ward v. United States, No. 08889, 2008 WL 2622785 (D.N.J. June 27, 2008) (dismissing motion
claiming ineffective assistance of counsel and involuntary plea
as improper under § 2241 and untimely under § 2255)
See United States v.
614 F. App’x 580,
permits the certification of a second or
successive motion only where the claim is based on newly
discovered evidence that,
would be “sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense” or
is based on “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
previously unavailable.” The Court finds that it is not in the
interests of justice to transfer the motion to the Third Circuit
as it does not appear Petitioner can satisfy the requirements of
because his claims are not based on a new Supreme
Court decision or newly discovered evidence.
An appeal may not be taken from a final order in a
proceeding under 28 U.S.C.
§ 2255 unless a circuit justice or
judge issues a certificate of appealability.
2253 (c) (1) (B)
The United States Supreme Court held in Slack v.
McDaniel that “[w]hen the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s
a COA should issue when the
underlying constitutional claim,
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.” 529 U.s.
denies a certificate of appealability because jurists of reason
would not find it debatable that dismissal of the motion as
second or successive is correct because,
claims are not based on newly discovered evidence or a new
supreme Court decision.
For the reasons stated above,
this Court will dismiss the
and a certificate of
motion for lack of jurisdiction,
appealability shall not issue. An accompanying Order will be
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