SCRIVEN v. UNITED STATES OF AMERICA

Filing 7

MEMORANDUM OPINION. Signed by Judge Susan D. Wigenton on 3/1/2018. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALSHARIF L. SCRIVEN,

Civil Action No. 17-7185 (SDW)

Petitioner,
v.

MEMORANDUM OPINION

UNITED STATES,
Respondent.

IT APPEARING THAT:
1. On or about September 9, 2017, Petitioner, Alsharif L. Scriven, filed a motion to vacate
his December 2015 conviction pursuant to 28 U.S.C. § 2255. (ECF No. 1).
2. On September 28, 2017, this Court administratively terminated this matter as Petitioner
had not filed his motion on the required form. (ECF No. 2).
3. On or about October 19, 2017, Petition filed an amended motion to vacate sentence on
the required form. (ECF No. 3).
4. On October 26, 2017, this Court entered an order directing Petitioner to show cause
why his amended motion should not be dismissed as time barred within thirty days. (ECF No. 4).
Petitioner was informed in that order that failure to respond could result in the dismissal of his §
2255 motion with prejudice as time barred. (Id.).
5. On November 27, 2017, Petitioner filed with the Court a letter requesting a forty-five
day extension of time within which to respond to the show cause order. (ECF No. 5). This Court
granted that request on November 30, 2017, and directed Petitioner to file his response within
forty-five days. (ECF No. 6). Despite the passage of more than three months, Petitioner has not
filed a response. (ECF Docket Sheet).

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6. As this Court previously explained to Petitioner,
this Court is required to review Petitioner’s motion pursuant to Rule
4 of the Rules Governing Section 2255 Proceedings 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 [motion] that appears
legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849,
856 (1994).
Motions brought pursuant to 28 U.S.C. are subject to a one
year statute of limitations. 28 U.S.C. § 2255(f). That limitation
period begins to run from the latest of the following events: the date
on which the Petitioner’s conviction becomes final, which includes
the time in which a Petitioner could have filed an appeal where he
fails to do so, see Kapral v. United States, 166 F.3d 565, 577 (3d
Cir. 1999); the date on which an impediment created by the
Government is removed; the date on which the right asserted was
first recognized by the Supreme Court where a new right has been
recognized by the Court and made retroactive to cases on collateral
review; or the date on which the facts supporting the claim first
became discoverable through due diligence. See 28 U.S.C. §
2255(f)(1)-(4). As a criminal defendant must file his notice of
appeal from his conviction within fourteen days, the conviction of a
petitioner who fails to file a direct appeal becomes final for statute
of limitations purposes fourteen days after his sentencing. See
Johnson v. United States, 590 F. App’x 176, 177 (3d Cir. 2014); see
also Kapral, 166 F.3d at 577; Fed. R. App. P. 4(b)(1)(A)(i).
In this matter, Petitioner pled guilty and was thereafter
sentenced in December 2015, with his judgment of conviction being
entered on December 3, 2015. (ECF No. 3 at 1). By his own
admission, Petitioner did not appeal, (see id.), and his conviction
therefore became final fourteen days later on December 17, 2015.
Thus, to the extent that his statute of limitations ran from the date on
which his conviction became final, that limitations period expired as
of December 17, 2016, some nine months before Petitioner filed his
initial motion to vacate sentence. Absent an alternate date for the
running of the statute of limitations or equitable tolling, Petitioner’s
current motion is thus time barred.
Equitable tolling “is a remedy which should be invoked
‘only sparingly.’” United States v. Bass, 268 F. App’x 196, 199 (3d
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Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174, 179 (3d
Cir. 1998)). To receive the benefit of equitable tolling in a § 2255
matter, 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)).
In his amended motion to vacate sentence (ECF No. 3),
Petitioner fails to provide the Court with any basis for finding that
he is entitled to equitable tolling of the § 2255 limitations period,
and this Court perceives no such basis from the face of the amended
motion. As such, it appears from the amended motion that
Petitioner’s habeas petition is well and truly time barred by
approximately nine months.
(ECF No. 4 at 1-3, internal paragraph numbers omitted).
7. As Petitioner has not responded to the Court’s show cause order despite the passage of
several months, because Petitioner’s petition, absent equitable tolling, was filed more than nine
months after the limitations period expired, and because this Court perceives no basis for the
equitable tolling of the limitations period in this matter, the Court must conclude that Petitioner’s
§ 2255 motion is well and truly time barred. Petitioner’s amended § 2255 motion is therefore
dismissed with prejudice as time barred.
8. 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 [matter] on
procedural grounds without reaching the prisoner's underlying constitutional claim, a [Certificate
of Appealability] should issue when the prisoner shows, at least, that jurists of reason would find
it debatable whether the [Petitioner’s § 2255 motion] states a valid claim of the denial of a
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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
Petitioner’s § 2255 motion is well and truly time barred and Petitioner has utterly failed to
demonstrate any basis for equitable tolling, jurists of reason could not debate that this Court is
correct in determining that his petition must be dismissed as untimely.

A certificate of

appealability is therefore denied.
9.

In conclusion, Petitioner’s amended motion to vacate sentence (ECF No. 3) is

DISMISSED WITH PREJUDICE as time barred and Petitioner is DENIED a certificate of
appealability. An appropriate order follows.

Dated: March 1, 2018

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

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