Filing 6

OPINION fld. Signed by Judge William H. Walls on 10/18/16. (sr, )(N/M)

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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

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