TELFAIR v. LYNCH et al

Filing 6

OPINION. Signed by Judge Susan D. Wigenton on 12/1/2016. (JB, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TOMMIE TELFAIR,
Petitioner,
v.
LORETTA LYNCH, et al.,
Respondents.

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Civil Action No. 16-5085 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is Petitioner Tommie Telfair’s motion for reconsideration of the
dismissal of his petition for a writ of habeas corpus without prejudice as it was essentially a time
barred motion to vacate sentence brought pursuant to 28 U.S.C. § 2255. (ECF No. 5). For the
reasons set forth below, this Court will deny the motion.

I. BACKGROUND
In the opinion dismissing Petitioner’s current petition as time barred, this Court provided
the following factual summary of the background of this matter:
Petitioner, Tommie Telfair, seeks in his current habeas petition to
challenge his conviction for conspiracy to distribute and possession
with intent to distribute one kilogram or more of cocaine, essentially
by challenging this Court’s jurisdiction to hear his criminal matter
by asserting both that Congress never gave this Court jurisdiction
over such criminal matters and that, even if Congress had done so,
the Court never acquired jurisdiction over Petitioner because he was
not served with process prior to his being arrested. (ECF Nos. 1-

2). Following a guilty verdict in February 2010, Petitioner was
sentenced to 240 months imprisonment on both charges, to run
concurrently with one another, as well as a period of supervised
release, in November 2011. See United States v. Telfair, 507 F.
App’x 164, 169 (3d Cir. 2012), cert. denied, --- U.S. ---, 134 S. Ct.
167 (2013); Telfair v. United States, No. 13-6585, 2016 WL 632225,
at * 9-10 (D.N.J. Feb. 17, 2016). Following his conviction,
Petitioner appealed. On direct appeal, however, Petitioner’s
attorney filed an Anders brief, arguing that there was no meritorious
basis for an appeal in his professional judgment, and arguing that
the appeal should be dismissed. Telfair, 507 F. App’x at 169-70;
see also Anders v. California, 386 U.S. 738, 744 (1967). Although
the Third Circuit found counsel’s Anders brief inadequate, the Court
of Appeals ultimately concluded after a thorough review that
Petitioner’s case presented no meritorious basis for appeal, and
affirmed Petitioner’s conviction in December 2012. Telfair, 507 F.
App’x at 171-79. Petitioner petitioned for certiorari, but that
petition was denied on October 7, 2013. Telfair v. United States, -- U.S. ---, 134 S. Ct. 167 (2013). Petitioner’s request for a
rehearing before the Supreme Court was likewise denied on
December 9, 2013. Telfair v. United States, --- U.S. ---, 134 S. Ct.
815 (2013).
Following the conclusion of his direct appeal, Petitioner
filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255
in this Court on or about October 25, 2013. (Docket No. 13-6586
at ECF No. 1). On February 17, 2016, this Court entered an order
and opinion denying all of Petitioner’s § 2255 claims except one –
Petitioner’s claim that he should have been granted a hearing as to
his Miranda suppression motion – and denied Petitioner a certificate
of appealability as to all of his denied claims.1 See Telfair, 2016
WL 632225 at *10-26. (See also Docket No. 13-6585 at ECF Nos.
36-37). An evidentiary hearing on Petitioner’s Miranda claim in
his § 2255 matter is currently set for December 15, 2016. (Docket
No. 13-6585 Docket Sheet).
On or about August 19, 2016, Petitioner filed the instant
habeas petition, purportedly brought pursuant to 28 U.S.C. § 2241.
(ECF No. 1). Petitioner thereafter filed a brief in support of that
Petition on or about September 1, 2016). (ECF No. 2).
“Petitioner initially attempted to appeal the February 2016 Order, but that appeal was
dismissed for lack of jurisdiction in June 2016.” (ECF No. 3 at 2).
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(ECF No. 3 at 1-2).
On September 20, 2016, this Court entered an order and opinion dismissing Petitioner’s
purported habeas petition as an untimely motion to vacate sentence. (ECF Nos. 3-4). In so
doing, this Court explained as follows:
Petitioner seeks to use § 2241 to challenge his federal conviction
and sentence. A challenge to the validity of a federal conviction or
sentence, however, must normally be brought pursuant to 28 U.S.C.
§ 2255. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir.
2002) (a motion filed pursuant to § 2255 is the presumptive means
for challenging a federal conviction); see also Jordan v. United
States, 615 F. App’x 764, 765 (3d Cir. 2015). As the Third Circuit
has explained, “a federal prisoner can challenge his conviction or
sentence under 28 U.S.C. § 2241 only if the remedy provided by 28
U.S.C. § 2255 is ‘inadequate or ineffective’ to test the legality of his
or her detention.” Concepcion v. Zichefoose, 442 F. App’x 622,
623 (3d Cir. 2011) (quoting Cradle . U.S. ex rel. Miner, 290 F.3d
536, 538 (3d Cir. 2002)). The § 2255 remedy is only inadequate
“where the petitioner demonstrates that some limitation of scope or
procedure would prevent the petitioner from receiving adequate
adjudication of his or her claims under § 2255. This exception is
extremely narrow and applies only in rare circumstances.” Id.
(internal quotations omitted); see also Cradle, 290 F. 3d at 538;
Okereke, 307 F.3d at 120-21 (finding exception does not apply
where a petitioner claims that his sentence, which was originally
proper, now violates Apprendi v. New Jersey, 530 U.S. 466 (2000));
Dorsainvil, 119 F.3d at 251-52 (applying the exception where an
intervening change in law rendered the petitioner’s conduct noncriminal and the petitioner had not received a previous opportunity
to pursue that claim). Section 2255 is therefore not inadequate or
ineffective “merely because the sentencing court does not grant
relief, the one-year statute of limitations has expired or the petitioner
is unable to meet the stringent gatekeeping requirements of . . . §
2255.” Cradle, 290 F.3d at 539; see also Okereke, 307 F.3d at 120
(quoting Dorsainvil, 119 F.3d at 251). The inadequate remedy
safety valve “exists to ensure that petitioners have a fair opportunity
to seek collateral relief, not to enable them to evade procedural
requirements.” Cradle, 290 F.3d at 539.
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In this matter, Petitioner seeks to challenge his federal
conviction and sentence on drug charges. In so doing, Petitioner
seeks to challenge this Court’s jurisdiction in his criminal case ab
initio. Nothing in the arguments Petitioner now seeks to raise
regarding the Court’s jurisdiction presents a claim that Petitioner
was in any way prevented from raising in his prior § 2255 motion,
during his direct appeal, or, indeed, at any time during his trial. See,
e.g., Fed. R. Crim. P. 12(b)(2) (permitting a motion arguing that a
court lacks jurisdiction to be “made at any time while the case is
pending”). Likewise, Petitioner’s remaining claims, that the
warrant issuing court lacked probable cause or that he was denied a
fair trial, were more than capable of being raised during his trial, on
direct appeal, or in his § 2255 motion. None of Petitioner’s claims
rely on information or caselaw which was previously unavailable,
and none of Petitioner’s claims assert that he was convicted of an
offense now rendered non-criminal. The only thing that would
prevent Petitioner from being able to present these claims via a §
2255 motion is Petitioner’s inability to meet the gatekeeping
requirements of a motion to vacate sentence – specifically the one
year statute of limitations – and his failure to raise these claims in
his previously filed and still pending first § 2255 motion. Thus,
Petitioner’s claims clearly do not meet the Dorsainvil exception, and
this Court is therefore required to construe Petitioner’s current
challenges as either a second § 2255 motion or an attempt to amend
his already pending § 2255 motion (Docket No. 13-6585) to contain
his new claims.2
Construing Petitioner’s current habeas petition as either a
new § 2255 motion or an attempt to amend his currently pending §
2255 motion, however, it is clear that Petitioner’s newly raised
claims are all time-barred. All § 2255 motions are subject to a one
year statute of limitations. 28 U.S.C. § 2255(f). That limitations
period begins to run from the latest of the following: the date 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 the motion is based
“Although this is, in effect, Petitioner’s chronologically second motion to vacate sentence,
because his original motion has yet to be denied in its entirety, the current petition is not yet
clearly a second or successive § 2255 motion brought without leave in so much as this motion
would not be successive in the event Petitioner’s first § 2255 motion is granted.” (ECF No. 3 at
5).
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on a newly recognized right made retroactive to collateral review
matters, or the date on which the facts supporting the calm could
first have been discovered through due diligence. § 2255(f)(1)-(4).
As Petitioner’s arguments do not rely on a newly established right,
and are not based on facts previously undiscoverable, and because
Petitioner has not shown that an impediment prevented him from
raising them sooner, Petitioner’s statute runs from the date on which
his conviction became final. A conviction is final for § 2255
purposes at the conclusion of direct appeal. See, e.g., 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).
Even giving Petitioner the benefit of the date on which his
petition for rehearing was denied by the Supreme Court, cf. United
States v. Segers, 271 F.3d 181, 185-86 (4th Cir. 2001) (collecting
cases ruling that petition for rehearing does not extend limitations
period), his conviction was final, at the latest, on December 9, 2013.
Petitioner’s one year statute of limitations had therefore run as of
December 9, 2014. That Petitioner has a pending § 2255 motion
does not change this fact. See, e.g., Duncan v. Walker, 533 U.S.
167, 181-82 (2001) (federal habeas petition does not toll statute of
limitations for further habeas review). Thus, absent some form of
equitable tolling, the § 2255 statute of limitations has run as to all of
the claims Petitioner now seeks to raise in his current petition.
Although the statute of limitations for a § 2255 motion is
subject to equitable tolling, such 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)). A petitioner is therefore only entitled to
tolling where he can “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 limitations. United States v. Thomas, 713 F.3d 165, 174
(3d Cir. 2013).
In his current petition, Petitioner presents no meritorious
basis for the nearly two years of equitable tolling his new claims
would require, and this Court perceives no such basis given the
history of this matter and Petitioner’s already having filed and
litigated his prior § 2255 motion. This Court will therefore dismiss
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his current habeas petition as it in actuality presents either a time
barred second § 2255 motion or an attempt to amend his pending §
2255 motion to add additional claims which are all time barred.
Because Petitioner has not presented any basis for tolling in so much
as he filed this matter as a § 2241 petition, however, this Court will
dismiss this matter without prejudice and permit Petitioner to raise
any basis he may have for tolling by filing either an amended § 2255
motion or a motion to amend his already pending § 2255 motion
within thirty days.
(ECF No. 3 at 4-8).
On or about September 30, 2016, Petitioner filed his instant motion seeking reconsideration
of the dismissal of his habeas petition. (ECF No. 5). Petitioner does not state in his motion
whether he seeks relief under Local Civil Rule 7.1(i) or Federal Rule of Civil Procedure 59(e).
Because the same standard would apply regardless, and because this Court’s dismissal of
Petitioner’s habeas petition could arguably be considered final to the extent Petitioner chooses not
to argue for equitable tolling, this Court will consider Petitioner’s motion as if raised pursuant to
both rules.

II. DISCUSSION
A. Legal Standard
Petitioner seeks to have this Court reconsider the dismissal of his purported habeas petition
as an untimely § 2255 motion. Motions for reconsideration, whether brought pursuant to the local
civil rules or Rule 59(e), should only be granted sparingly. Delanoy v. Twp. Of Ocean, No. 131555, 2015 WL 2235103, at *2 (D.N.J. May 12, 2015) (as to Local Civil Rule 7.1(i)); see also
Blystone v. Horn, 664 F.3d 397, 415 (3d Cir. 2011) (as to Rule 59(e)). An order of this Court
may be altered or amended pursuant to such a motion only where the moving party establishes one
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of the following grounds: “(1) an intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court [issued its order]; or (3) the need to correct a
clear error of law or fact to prevent manifest injustice.” Delanoy, 2015 WL 2235106 at *2
(quoting Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)); see also Blystone,
664 F.3d at 415 (applying same standard to 59(e) motions). In this context, manifest injustice
“generally . . . means that the Court overlooked some dispositive factual or legal matter that was
presented to it,” or that a “direct, obvious, and observable” error occurred.

See Brown v.

Zickefoose, Civil Action No. 11-3330, 2011 WL 5007829, at *2, n. 3 (D.N.J. 2011).
Reconsideration motions may not be used to relitigate old matters or to raise arguments or present
evidence that could have been raised prior to entry of judgment, and courts should only grant such
a motion where its prior decision “overlooked a factual or legal issue that may alter the disposition
of the matter.” Delanoy, 2015 WL 2235106 at *2.

B. Analysis
In his motion for reconsideration, Petitioner incorrectly asserts that this Court considered
only one of his claims in dismissing his original petition as time barred, and cites to caselaw which
preceded the adoption of the current federal habeas framework for the proposition that reconstruing
his petition as a motion to vacate sentence denies him the benefit of the “great writ” of habeas
corpus. A review of this Court’s order dismissing Petitioner’s purported habeas petition clearly
shows that this Court considered all of the arguments Petitioner raised in that petition: that this
Court lacked jurisdiction over Petitioner to try him for his crimes, either for lack of proper service
of process or because Petitioner argues that this Court has no proper authority over him; that his
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arrest was not based on probable cause, and Petitioner’s exceedingly broad claim that he was
denied a fair trial. (ECF No. 3 at 4-8). This Court considered all of the claims raised in
Petitioner’s purported habeas petition and memorandum in support thereof, and found that all of
those claims could have been, but were not, previously raised to the extent they were not the same
as those claims raised in his ongoing, previous § 2255 matter, and the only thing preventing
Petitioner from raising them in a new § 2255 motion was his inability to meet § 2255’s gatekeeping
requirements. Thus, Petitioner’s argument that his claims were ignored is factually incorrect, and
this Court did not overlook any of his claims in finding that his petition was not properly raised
under § 2241 but instead arose under § 2255.
Turning to Petitioner’s second argument, that he is being denied the benefit of the “great
writ” of habeas corpus, Petitioner relies in this argument almost entirely upon hoary old caselaw
arising prior to the adoption of the current federal habeas corpus scheme, specifically Ex parte
Tom Tong, 108 U.S. 556 (1883), and Ex parte Bollman, 8 U.S. 75 (1807). Both of those cases
predate the adoption of 28 U.S.C. § 2255 (first adopted in 1948) and the modern federal habeas
corpus scheme, as well as the refinement of that scheme via the AEDPA statute of limitations
embodied in § 2255(f) which was adopted in 1996. Thus, both Tom Tong and Bollman do not
provide support for Petitioner’s point as they were decided long before the adoption of the current
federal habeas scheme, and are therefore silent as to the issues at play here.
As this Court previously explained to Petitioner, in the current habeas scheme, § 2255 is
the presumptive means for testing the validity of a federal conviction or sentence, such as through
the claims Petitioner attempted to raise in his current purported habeas petition. Okereke, 307
F.3d at 120. A federal prisoner may only resort to use of § 2241, the more general habeas statute,
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where the remedy available under § 2255 is inadequate or ineffective. Concepcion, 442 F. App’x
at 623. For the reasons expressed in this Court’s prior opinion which are quoted above, § 2255 is
neither inadequate or ineffective to test the validity of Petitioner’s conviction as he could have
raised all of the claims he now seeks to raise previously but, to the extent his claims are different
from those raised in his already pending § 2255 motion, did not do so. As such, he cannot resort
to § 2241, and instead may only challenge his sentence on the bases raised here via § 2255. This
Court therefore properly reconstrued his petition as a motion to vacate sentence, and dismissed it
without prejudice as untimely. In so doing, this Court did not overlook any relevant facts or case
law, and Petitioner has failed to present any argument that the state of the law has changed since
that decision was rendered. As there is no manifest injustice or clear error to be corrected, and as
Petitioner has presented no newly available evidence which he could not previously have raised,
he has presented no valid basis for reconsideration, and his motion must be denied. Blystone, 664
F.3d at 415; Delanoy, 2015 WL 2235106 at *2.

III. CONCLUSION
For the reasons stated above, Petitioner’s motion for reconsideration (ECF No. 5) is
DENIED. An appropriate order follows.

Dated: December 1, 2016

_s/ Susan D. Wigenton__
Hon. Susan D. Wigenton,
United States District Judge

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