WARD v. UNITED STATES OF AMERICA

Filing 6

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.

WALLS

Petitioner,
Civil Action
No. 16—4101 CWHW)

v.
UNITED STATES OF AMERICA,

OPINION

Respondent.

APPEARANCES:
David James Ward, Petitioner pro se
#10694—026
Tucson
United States Penitentiary
P.O. Box 24550
Tucson, AZ 85734
—

WALLS,
I.

Senior District Judge:

INTRODUCTION

This matter comes before the Court on the motion by David
James Ward to vacate,
sentence.

set aside,

or correct his federal

For the reasons expressed below,

this Court will

dismiss the petition for lack of jurisdiction,

and no

certificate of appealability shall issue.
II.

BACKGROUND
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
State Police.
United States v.

2011)

.

Ward,

760 F.

Supp.

2d 480,

480—81

(D.N.J.

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,
States v.

Ward,

No.

96—0061

(D.N.J.

July 10,

1996)

United

•1

“Paragraph

24 of the application twice noted that Ward understood that he
faced a maximum sentence of life imprisonment.” Ward,

1

760 F.

See 28 U.S.C. § 2255 Rule 4(b) (permitting examination of “the
record of prior proceedings” in the court’s initial review).

2

Supp.

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
18 U.S.C.

§ 1201

imprisonment

.

.

‘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,
original)

read and understood it.” Ibid.

On January 7,

.

1997,

(omission in

this Court departed from the

guidelines due to the multiple acts of criminal sexual abuse and
sentenced Petitioner to 720 months incarceration.
appealed,

and the Third Circuit affirmed the sentence on

November 17,
1997)

2

Petitioner

1997.

United States v.

Ward,

131 F.3d 335

(3d Cir.

Petitioner did not file a petition for writ of

certiorari.
In 2008,

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
of counsel.

This Court noted that 28 U.S.C.

§ 2255 is the

presumptive means by which federal prisoner could challenge

2

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.
3

their convictions and sentences and that Petitioner had not
Ward v.

demonstrated that § 2255 was inadequate or ineffective.
United States,
2008)

.

No.

08—889,

2008 WL 2622785

(D.N.J.

June 27,

As the one-year statute of limitations under § 2255 had

long since expired by the time the petition was filed,
denied the motion.
several years,

Id.

the Court

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,

He filed

2016.

Petitioner raises three grounds for relief:

(1)

the

sentencing court lacked jurisdiction over the matter as the
elements of rape and/or sexual assault were not presented to the
grand jury;

(2)

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
indictment;

and,

(3)

the sentence is unconstitutional because

the guidelines were mandatory at the time of sentencing.
Petition ¶ 12.
III.

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.
97,

106

(1976) ;

Haines v.

Kerner,

Estelle v.

404 U.S.

519,

Gamble,

520

429 U.s.

(1972)

.

pro se § 2255 motion and any supporting submissions must be
4

A

Construed liberally and with a measure of tolerance
v.

Hahn,

General

118

878 F.2d 714,

721—22

Brierley,
U.s.

912

(3d Cir.

151 F.3d 116,

414 F.2d 552,

555

1998);

(3d Cir.

(3d Cir.

Lewis v.

1989);

1969),

See Royce
Attorney

United States v.

cert.

denied,

399

(1970).

However,

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
IV.

28 U.S.C.

§ 2255 Rule 4.

DISCU$SIO

This is approximately Petitioners sixth challenge to his
sentence

3

Before this Court may Consider a second or successive

§ 2255 motion,

Petitioner must obtain an order of authorization

from the Third Circuit.

28 U.S.C.

§ 2255(h);

28 U.S.C.

Rule 9. As Petitioner has not obtained such an order,

§ 2255
this Court

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)
aff’d
ate of
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)
5

Circuit.
Cir.

See United States v.

Hawkins,

614 F. App’x 580,

582

(3d

2015)
Sections 2255(h)

permits the certification of a second or

successive motion only where the claim is based on newly
discovered evidence that,

if proven,

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,

that was

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
§ 2255(h)

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)

.

28 U.S.C.

§

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,
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
6

would find it debatable whether the district court was correct
in its procedural ruling.” 529 U.s.

473,

484

(2000)

This Court

.

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,

as stated,

Defendant’s

claims are not based on newly discovered evidence or a new
supreme Court decision.
V.

CONCLUSION

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
entered.

/1

WILLIA H.
Senior U.S.

Date

7

LS
District Judge