DICKSON v. UNITED STATES OF AMERICA

Filing 9

OPINION filed. Signed by Judge Peter G. Sheridan on 7/30/2015. (kas, )

*NOT FOR PUBLICATION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

PABLO DICKSON,
Civil Action No. 12-7001 (PGS)
Petitioner,
v.

:

OPINION

UNITED STATES OF AMERICA.
Respondent.

SHERIDAN, District Judge:
Petitioner Pablo Dickson (“Petitioner”), a prisoner incarcerated at the North Infirmary
Command at Rikers Island in Elmhurst, New York, is proceeding pro se with a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.

§

2255. (Pet., ECF No. 6.) For reasons

stated below, the Court dismisses the Petition as untimely.
I. BACKGROUND
The Court recounts only the facts relevant to this Opinion.

On February 21, 2008,

Petitioner pled guilty to a one-count Indictment, charging him with conspiring and agreeing with
others to distribute and to possess with intent to distribute 500 grams or more of cocaine, a
Schedule IT controlled substance, contrary to Title 21, United States Code, Sections 841(a)(l) and
(b)(1)(B) and in violation of Title 21, United States Code, Section 846. (US. v. Dickson, Crim.
Action No. 07-962, ECF No. 22-23.) On May 29, 2008, the Court sentenced Petitioner to time
served, followed by five years of supervised release. (Id. at ECF No. 24.) On September 3, 2008
and November 24, 2009, the Court entered Amended Judgments to correct errors. (Id. at ECF
Nos. 28. 31.) Petitioner did not file a direct appeal.

On October 22, 2012, Petitioner filed the instant

§ 2255 Petition.

Thereafter, on December 4, 2012, Petitioner filed his amended 28 U.S.C.

(ECF No. 1.)

§ 2255 Petition. (ECF

No. 6.) In his Amended Petition, Petitioner raises the following grounds for relief: (1) Petitioner’s
sentence is illegal because supervised release must immediately follow release from prison; (2)
changing Petitioner’s sentence from supervised release to home confinement violated Petitioner’s
right to due process; (3) the detainer is illegal because it is based on an illegal sentence; (4)
ineffective assistance of counsel based on counsel’s failure to advise Petitioner that the sentence
is illegal. Respondent filed an Answer (ECF No. 8) and Petitioner did not file a Reply.
II. DISCUSSION
A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 28 U.S.C.

§ 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C.

§ 2255.

Unless the moving party claims a jurisdictional defect or a Constitutional violation, the
moving party must show that an error of law or fact constitutes “a fundamental defect which
inherently results in a complete miscarriage of justice, (or) an omission inconsistent with the
rudimentary demands of fair procedure.” United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir.
1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
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B. Analysis

Pursuant to 28 U.S.C.

§

2255(f), “[a] 1—year period of limitation shall apply to a motion

under this section.” The limitation period runs from the latest of
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making
a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C.

§

2255(f); see also 28 U.S.C.

§

2244(d)(1).

As explained by the Third Circuit in Kapral v. US., a “judgment of conviction becomes
‘final’ within the meaning ofS 2255 on the later of(1) the date on which the Supreme Court affirms
the conviction and sentence on the merits or denies the defendant’s timely filed petition for
certiorari, or (2) the date on which the defendant’s time for filing a timely petition for certiorari
review expires. If a defendant does not pursue a timely direct appeal to the court of appeals, his
or her conviction and sentence become final, and the statute of limitation begins to run, on the date
on which the time for filing such an appeal expired.” 166 F.3d 565, 577 (3d Cir. 1999).
Here, it appears that Petitioner is arguing that the I -year limitations period did not begin to
run until November 1, 2011, the date on which this Court issued an arrest warrant based on a

violation of his supervised release. (Pet’r’s Mem. Supp. Pet.
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¶

17-18, ECF No. 6-1.) However,

the entry of the detainer has no bearing on any of the claims Petitioner raises about his conviction
and sentence. Specifically, on October 27, 2011, this Court signed an arrest warrant for Petitioner
for violation of his supervised release. (US. v. Dickson, Crim. Action No. 07-962, ECF No. 33.)
The violation of supervised release was based on the fact that Petitioner was arrested in Brooklyn,
New York on October 20, 2011 and charged with burglary, kidnapping, robbery and assault. (Id.)
The detainer which was entered against Petitioner as a result of this arrest warrant has nothing to
do with the circumstances of Petitioner’s original conviction and sentence.

All of the facts

regarding his conviction and sentence were available to Petitioner, through the exercise of due
diligence, in 2009. Petitioner simply chose not investigate until the detainer was lodged in 2011
but such a decision does not mean that the underlying facts could not have been discovered two
years earlier. Therefore, the Court finds that for purposes of calculating the commencement of
the limitations period, 28 U.S.C. 2255(f)(1), not (0(4), is applicable to Petitioner. Because he did
not file an appeal to the Third Circuit, Petitioner’s conviction became final on the date his time to
appeal expired, which was December 8. 2009.’

Kapral. 166 F.3d at 577.

Absent equitable

tolling, the limitations period expired one year later on December 8, 2010.
Equitable tolling “is a remedy which should be invoked ‘only sparingly.’”

(Inited States

v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States v. Midgley, 142 F.3d 174,

in November 2009, the Federal Rules of Appellate Procedure required a notice of appeal in a
criminal case to be filed within 10 days of the entry of the judgment. See FED. R. App. P.
4(b)(l)(A) (2009). Effective December 1, 2009, criminal defendants now have 14 days within
which to file an appeal to the Third Circuit. See FED. R. App. P. 4(b)(l)(A) (201 5). Since the
instant Petition is untimely no matter which time period is used, the Court assumes without
deciding that the 14 day period applies to Petitioner. Similarly, the Court also gives Petitioner
the benefit of the date the final amended judgment was entered, November 24, 2009, as the date
of his conviction.
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179 (3d Cir. 1998)).

A petitioner seeking equitable tolling must show (1) that he faced

extraordinary circumstances that stood in the way of timely filing,’ and (2) that he exercised
reasonable diligence.” United States v. Johnson, 590 F. App’x 176, 179 (3d Cir. 2014) (quoting
Fabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Diligence in this context is determined
objectively, but does take into consideration a prisoner’s particular circumstances. Id.

In non-

capital cases, an attorney’s “malfeasance or non-feasance is typically not an extraordinary
circumstance which justifies equitable tolling of a

§ 2255 motion.” Bass, 268 F. App’x at 199;

see also Schlueter v. Varner, 384 F.3d 69, 76 (3d Cir. 2004). The exception to this general rule
is quite narrow, and arises only in those cases where an attorney’s affirmative misrepresentation to
his client is coupled with extreme diligence on the part of the petitioner. See Schlueter, 384 F.3d
at 76; see also Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239—42 (3d Cir. 1999)
(permitting equitable tolling of the Title VII statute of limitations where an attorney affirmatively
misled his client to believe he had timely filed a complaint and the client thereafter filed her
complaint within one day of the statute of limitations following extensive efforts to ensure timely
filing).
Here, Petitioner has not made any arguments regarding equitable tolling. To the extent
his Petition can be read to include an argument for tolling based on the fact that Petitioner was not
aware of the “errors” in his conviction and sentence until the federal detainer was lodged against
him, the Court has already found such an argument to be without merit. Petitioner could have
discovered the ‘errors” had he done any investigation back in 2009: the fact that he chose not to
do so because he had confidence in his attorney does not mean that he was unable to discover any
relevant facts. Petitioner is not entitled to equitable tolling.

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To summarize, Petitioner’s conviction became final on December 8, 2009 and he is not
entitled any equitable tolling of the limitations period. As such, the statute of limitations for his

§

2255 petition expired one year later on December 8, 2010. Since his

§

2255 Petition was not

filed until October 22, 2012, said Petition must be dismissed as timebarred.
III. CERTIFiCATE OF APPEALABILITY

This Court will deny a certificate of appealability because Petitioner has not demonstrated
“a substantial showing of the denial of a constitutional right” as required under 28 U.S.C.

§

2253(c). See Miller—El v. Cockrell, 537 U.S. 322, 327 (2003).
IV. CONCLUSION

For the reasons stated above, Petitioner’s motion is DISMISSED, and no certificate of
appealability shall issue. An appropriate order follows.
Dated:

Po iyØlL
Peter G. Sheridan, U.S.D.J.

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