SHEBA v. UNITED STATES OF AMERICA
Filing
17
OPINION filed. Signed by Judge Freda L. Wolfson on 1/19/2016. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ADEBOWALE SHEBA,
Civil Action No. 13-0024 (FLW)
Petitioner,
v.
OPINION
UNITED STATES OF AMERICA,
Respondent.
WOLFSON, United States District Judge:
I.
INTRODUCTION
Movant Adebowale Sheba (hereafter “Movant” or “Sheba”), previously incarcerated at
Limestone County Federal Detention Center, Groesbeck, Texas, and currently detained by
Immigration and Customs Enforcement (“ICE”) at Essex County Correctional Facility, Newark,
New Jersey, is proceeding pro se with a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 (“Motion” or “§ 2255 Motion”). The Motion has been fully
briefed and is ready for disposition. For the reasons explained in this Opinion, the Motion is
dismissed with prejudice as untimely and no certificate of appealability shall issue.
II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
a. The Plea Agreement
The Court recounts only the facts necessary to this Opinion. On or about November 12,
2009, Sheba and several co-conspirators were charged in a criminal complaint in the United
States District Court, District of New Jersey, with conspiring to defraud the United States in
violation of Title 18, United States Code, Section 286. (See Criminal Docket for United States v.
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Sheba, Crim. No. 10-874 (FLW), No. 1.) On or about December 22, 2010, pursuant to a
written plea agreement between the United States and Sheba, Sheba pled guilty to one count of
conspiracy to defraud the United States. (ECF No. 12-3, Plea Agreement, attached as Ex. 3 to
Res. Answer.) The Plea Agreement also included a waiver provision under which Sheba agreed
to waive his right to file an appeal or collateral attack of his sentence if it was within or below
the Guideline range that resulted from a total offense level of 23, and the government was
similarly precluded from challenging the sentence if it fell within or above the Guideline range
that resulted from a total offense level of 25. 1 (See Exhibit 3, Schedule A.)
This Court sentenced Sheba on July 25, 2011 to 72 months imprisonment, the low end of
the Guidelines range applicable to offense level 25 and criminal history category III, and a term
of supervised release of 3 years. The Court also ordered Sheba to pay $609,521.34 in restitution.
(See Transcript of Sentencing before the Honorable Freda L. Wolfson, U.S.D.J., July 25, 2011,
attached as Exhibit 4, at pages 30-34). Sheba did not file an appeal.
b. Sheba’s 2255 Motion
On December 10, 2012, Sheba wrote to the Court as follows, requesting an extension of
time to file his habeas petition:
COMES NOW: The movant ADEBOWALE SHEBA, pro
se, and this Honorable Court respectfully state and prays as follows
1.
On July 25, 2011, I was sentenced to 72 months of
imprisonment at the above mentioned criminal cause.
2.
At the same time I was responding to the criminal
case Number: 09-12-0349-S of State Court of New Jersey.
The Plea Agreement also set forth certain stipulations relating to the United States Sentencing
Guidelines including that the offense involved sophisticated means and trafficking in
unauthorized access devices. However, both parties reserved their right to argue at sentencing
the applicable loss amount under U.S.S.G. §2Bl.l(b)(1). The government's position was that the
loss was more than $2,500,000 but less than $7,000,000, and Sheba's position was that the loss
was more than $1,000,000 but less than $2,500,000.
1
2
3. At meanwhile I was confined in Federal Prison
Limestone Detention Center, in Groesbeck, Texas, and Mercer
County Correctional Center, New Jersey.
4.
On September 26, 2012[,] I was sentenced by State
Court to 5 years flat of imprisonment, concurrent with Federal
Sentence.
5.
From Mercer County Correctional Center, New
Jersey I was moved to Limestone Detention Center and I arrived
here on November 30, 2012.
6.
In order for movant to adequately bring these issues
to the Court's attention and be able to adequately filled all forms,
[sic] movant request that this honorable Court allow me 180 days
extension of time to file the forms.
7.
Movant is preceding pro se and I have to rely on
assistance of the other prisoners to assist him [sic] in preparing
said forms.
8.
That extension is hereby necessary so l can file my
forms and have a full and fair opportunity to present the Motion
2255.
Wherefore [sic] it is respectfully requested that this
Honorable Court enlarge the due date in which movant is required
to file his forms until January 25, 2013.
Because Sheba had not yet submitted his § 2255 Motion, the letter was filed in Sheba’s criminal
case. (See Criminal Docket for United States v. Sheba, Crim. No. 10-874 (FLW), No. 56.)
Sheba subsequently submitted his §2255 Motion, dated December 24, 2012, which was filed
with the Court on January 2, 2013. (See ECF No. 1.)
In his § 2255 Motion, Sheba acknowledged that his Motion was untimely as his judgment
of conviction became final more than a year prior to his submission of the Motion. He again
asked the Court to extend the limitations period for the reasons stated in his December 10, 2012
letter to the Court, which was filed in his criminal case. (ECF No. 1, Motion at 9-10.)
The Court, by Notice and Order dated March 4, 2013 (the “Notice and Order”), and
pursuant to the decision of the Court of Appeals for the Third Circuit in United States v. Miller,
197 F.3d 644 (3d Cir. 1999), advised Sheba that he could have the pleading ruled upon as filed
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and, if he did, he would not be able to raise additional claims in another pleading, absent
certification from the Court of Appeals, or he could withdraw the pleading and file an
allinclusive § 2255 petition within the one-year period described by the Antiterrorism and
Effective Death Penalty Act ("AEDPA") in 28 U .S.C . § 2255. (ECF No. 3.) The Notice and
Order required Sheba to advise the Court of his decision within 45 days. (Id.) After receiving
several extensions of time to respond to the Court’s Order, Sheba submitted his “Supplemental
Motion for 28 U.S.C. 2255 Relief” (the “Supplemental 2255 Motion”), dated June 28, 2013,
which was filed with the Court on July 8, 2013. (ECF No. 9.) Reading his motion papers
together, Sheba challenges two aspects of his sentence: the Court’s loss amount determination
and criminal history calculation – and seeks a modified sentence of 57 months. 2
The Government filed its Answer on May 12, 2014. The Government first argued that
Sheba’s § 2255 Motion should be dismissed as untimely because it was brought nearly five
months after the limitations period expired and Sheba “has not offered any reason that would
warrant tolling of the statute of limitations.” (ECF No. 13, Answer at 7.) In a footnote, the
Government stated as follows:
In his initial 2255 Motion, Sheba referred to a letter that he
submitted to the Court on or about December 13, 2012 in which he
sought an extension of time to file the 2255 Motion. In that
submission, Sheba claimed without explanation that he needed
additional time because he was confined in the Mercer County
Correctional Center and then in federal prison in Groesbeck,
Texas. (See Exhibit 6). The Court should not consider this request
as it was submitted several months after the statute of limitations
had expired and does not provide any rational or other explanation
as to why Sheba was unable to timely file his petition.
2
Sheba challenged the loss amount determination in his initial § 2255 motion, but did not
reassert that claim in his supplemental § 2255 motion. Because the Court finds that his Petition
is untimely, it does not consider whether he waived his argument as to the loss determination
amount by not reasserting that claim in his supplemental motion.
4
(ECF No. 13, Answer at 7 n.2.) The Government also addressed the merits of Sheba’s § 2255
Motion, arguing that (1) the challenges to the Court’s criminal history calculation and loss
amount determination should have been brought on direct appeal, (2) that the alleged errors did
not amount to a miscarriage of justice, and (3) that that his arguments were otherwise without
merit because the Court’s criminal history calculation and loss amount determinations were
correct. (ECF No. 13.) On June 2, 2014, Sheba submitted his Reply to the Government’s
Answer, which was filed on June 6, 2014. In his reply, Sheba did not provide any response to
the Government’s argument that his Motion is untimely and that he has failed to provide any
basis for equitable tolling. 3
III.
ANALYSIS
a. Sheba’s § 2255 Motion is Untimely
Here, the threshold issue before the Court is whether Sheba’s § 2255 motion is untimely
under the one-year limitations period prescribed by the Anti–Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Pursuant to 28 U.S.C. § 2255(f), “[a] 1–year period of
limitation shall apply to a motion under this section.” See id. The limitation period runs from
the latest of
(1) the date on which the judgment of conviction becomes
final;
3
In addition, Sheba argues for the first time in his Reply that he “requested his Counsel to file
his notice of appeal, and Counsel did not file the timely notice as he was requested to do.” (See
ECF No. 14, Reply at 5.) The Court declines to consider new grounds raised on Reply where the
movant was provided with the required Miller notice and had the opportunity to raise this issue
in his Supplemental § 2255 Motion. See, e.g., Soto v. United States, No. CIV.A. 04-2108 (JAG),
2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005) aff'd, 313 F. App'x 496 (3d Cir. 2008) (finding
that “Petitioner must not be allowed at this stage in the litigation to assert a new claim in a reply
brief” where Petitioner received a Miller notice pursuant to United States v. Miller, 197 F.3d
644 (3d Cir. 1999)). The Court notes, however, that Sheba’s contention that his attorney did not
file his appeal as requested does not alter the Court’s analysis finding that his § 2255 motion is
untimely.
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(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. U.S., 166 F.3d 565, 577, 570-71 (3d Cir.
1999), a “judgment of conviction becomes ‘final’ within the meaning of § 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; see also Clay v. U.S., 537 U.S. 522,
527 (2003) (citations omitted) (A federal criminal conviction becomes “final,” within the
meaning of § 2255(f)(1), when the United States Supreme Court “affirms a conviction on the
merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a
certiorari petition 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.” Kapral, 166 F.3d at 577; see also SanchezCastellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004); Wims v. United States, 225 F.3d
186, 188 (2d Cir. 2000).
In this case, Sheba did not file an appeal, and his conviction became final when his time
to appeal expired under the Federal Rules of Appellate Procedure – i.e., 14 days after the entry of
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judgment in the district court. Kapral, 166 F.3d at 577; Nelson v. United States, No. CIV.A. 125265 FLW, 2013 WL 2182602, at *2 (D.N.J. May 20, 2013) (citing Fed. R. App. P. 4(b)(1) (“In
a criminal case, a defendant's notice of appeal must be filed ... within 14 days after ... the entry of
either the judgment [being] appealed”); Doyle v. United States, No. CIV.A. 13-5284 RMB, 2013
WL 5521578, at *1 (D.N.J. Oct. 3, 2013) (same).
Here, Sheba’s judgment of conviction was entered on July 25, 2011. Because Sheba did
not appeal, his conviction became final when the time for filing of a notice of appeal expired on
August 8, 2011. As such, to be considered timely, Sheba’s § 2255 Motion should have been
handed to prison officials for filing by August 8, 2012. See Burns v. Morton, 134 F.3d 109, 113
(3d Cir.1998) (“[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it
to prison officials for mailing to the district court.”) (citing Houston v. Lack, 487 U.S. 266, 108
S.Ct. 2379, 101 L.Ed.2d 245 (1988)). Sheba’s § 2255 Motion is dated December 24, 2012 and
was filed on January 2, 2013. As such, the Motion is untimely by at least four months.
b. Equitable Tolling Analysis
That is not the end of the matter, however, as the statute of limitations is subject to
certain equitable considerations. Courts have recognized that the statute of limitations may be
equitably tolled where extraordinary circumstances so warrant. See United States v. Thomas,
713 F.3d 165, 174 (3d Cir. 2013); see also Miller v. N.J. State Dep't of Corr., 145 F.3d 616, 618
(3d Cir. 1998) (holding that AEDPA's one year limitation period may be equitably tolled). As
explained by the Third Circuit in Thomas, “the Supreme Court has instructed that equity permits
extending the statutory time limit when a defendant shows that (1) ‘he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.’” Id. at 174 (citing Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562–63, 177
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L.Ed.2d 130 (2010)); see also Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161
L.Ed.2d 669 (2005)). Mere excusable neglect is insufficient. Id. (citing Robinson v. Johnson, 313
F.3d 128, 142 (3d Cir. 2002)).
There are no bright-line rules for determining when extra time should be permitted in a
particular case. Thomas, 713 F.3d at 174 (citing Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir.
2012)). Rather, the unique circumstances of each defendant seeking § 2255 relief must be taken
into account. Id. (citing Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011)). Equitable tolling
should be granted sparingly and only when the principles of equity would make the rigid
application of a limitation period unfair. Id. (citing Pabon, 654 F.3d at 399). Similarly, courts
“should grant a motion for an extension of time to file a § 2255 motion sparingly, and should do
so only when the ‘principles of equity would make the rigid application of a limitation period
unfair.’” Id. (quoting Miller, 145 F.3d at 618).
Here, on December 10, 2012, approximately four months after the limitation period
expired, Sheba wrote to the Court requesting an extension of time to file his habeas petition. In
that submission, Sheba claimed without explanation that he needed additional time to bring
unspecified “issues” to the Court’s attention and to prepare certain “forms” because he had been
responding to a criminal case in state court during his one-year limitations period, and had been
confined at both the Mercer County Correctional Center and Limestone County Detention Center
in Groesbeck, Texas during the one-year limitations period. Read generously, Sheba’s extension
request suggests that the transfer or transfers from federal to state custody and the pending State
court criminal charges during the one-year limitations period made it difficult for him to file his
habeas petition in a timely manner.
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The Court’s equitable tolling analysis is guided by the Third Circuit’s decision in United
States v. Thomas, 713 F.3d 165 (3d Cir. 2013). There, Thomas, a federal prisoner, was
temporarily transferred to state custody on several occasions to answer charges that he murdered
his wife. 713 F.3d at 167. As in this case, the transfers and state court proceedings occurred
during the time in which he could have filed his motion to vacate, set aside, or vacate his federal
sentence in the District Court. On May 24, 2010, approximately three weeks before the deadline
for filing his § 2255 motion, he filed a pro se motion for a 120 day extension of time, arguing
that the extension was warranted because he was in state custody without access to legal
materials needed to prepare his motion for 120 days during the one year limitations period. Of
the 120 days spent in state custody, 80 occurred near end of the limitations period. See id.
However, he was returned to federal custody on May, 6, 2010 and had until June 15, to file his §
2255 motion. See id. at 167, 174. The District Court denied Thomas’ motion, and he appealed
without filing the § 2255 motion.
After determining that the District Court had jurisdiction to rule on Thomas’ motion prior
to his filing of a § 2255 motion, the Court found that “Thomas failed to show that he diligently
pursued his rights and that he was beleaguered by extraordinary circumstances.” Id. at 174. The
court went on to explain:
Although temporarily transferred to state custody, Thomas was in
federal custody with access to legal materials for approximately
nine months, including almost seven weeks leading up to the
expiration of his limitations period. Thomas provides no support
for a finding that he was diligent, nor does he explain the necessity
of the materials he claims he was deprived of. See Robinson v.
Johnson, 313 F.3d [128,] 143 [(3d Cir. 2002)] (“deprivation of
legal material for a relatively brief time period is not sufficient to
warrant tolling”). Although his transfer to state custody may have
made it more difficult to file a timely § 2255 motion, increased
difficulty does not, by itself, satisfy the required showing of
extraordinary circumstances. Cf. Munchinski v. Wilson, 694 F.3d
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308, 329–30 (3d Cir. 2012); Pabon [v. Mahanoy], 654 F.3d [385,]
399–400 [(3d Cir. 2011) (holding that “equitable tolling might be
warranted when a non-English speaking petitioner could not
comply with AEDPA's statute of limitations because the prison did
not provide access to AEDPA-related materials, translation, or
legal assistance in his or her language.”); Valverde v. Stinson, 224
F.3d 129 (2d Cir.2000) (remanding case to district court for further
factual development on extraordinary circumstances where
defendant alleged that corrections officer intentionally confiscated
his pro se habeas petition and related legal materials shortly before
filing deadline). Accordingly, the District Court did not err in
denying Thomas' motion for an extension of time to file a § 2255
motion.
Thomas, 713 F.3d at 174-75 (finding that permitting Thomas to file his § 2255 motion on remand
would be futile because that motion would be clearly denied as untimely).
The facts before the Court in this case are less compelling than those in Thomas, where
the Third Circuit found no equitable tolling. Even if the Court construed Sheba’s December 10,
2012 to the Court as a request to extend the time within which to file his § 2255 motion, that
letter was submitted months after the applicable limitations period expired and Sheba has offered
no explanation in the December 10, 2012 letter or his § 2255 motion papers for why he could not
have written to the Court and asked for the extension of time before the limitations period
expired. Like Thomas, Sheba provides no facts to suggest that he was in any way diligent during
the one-year limitations period. Although Sheba appears to suggest that the transfers between
federal and state custody and the pending criminal matter in State court made it more difficult for
him to file his habeas petition before the applicable limitations period expired, the Third Circuit
has made clear in Thomas that such difficulties, standing alone, do not establish the type of
extraordinary circumstances that would warrant equitable tolling. Sheba does not claim that he
was deprived of his own legal materials or resources during any portion of the limitations period.
Although Sheba contends that he needed to rely on other (presumably federal) prisoners to
prepare his § 2255 motion, he fails to explain why he could not get that assistance from federal
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prisoners while he was in federal custody at Limestone Detention Center. 4 For all these reasons,
the Court finds that Sheba cannot meet the requirements for equitable tolling, and his belated
extension request is denied.
Having found that Sheba cannot meet the requirements for equitable tolling, the Court
dismisses the Petition with prejudice as untimely. When a district court denies a habeas petition
on procedural grounds, a Certificate of Appealability (“COA”) is only appropriate if (1) “jurists
of reason ... could conclude the [constitutional] issues presented are adequate to deserve
encouragement to proceed further,” Perry v. Diguglielmo, 169 F. App'x 134, 136 (3d Cir. 2006)
(citing Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)), and (2) “jurists of reason would find it
debatable whether the district court was correct in its procedural ruling,” Id. (citing Slack v.
McDaniel, 529 U.S. 473, 478 (2000)). Here, the Court’s procedural ruling is not debatable in
light of Thomas, 713 F.3d at 174, and, as such, no certificate of appealability shall issue.
4
In Thomas, the Third Circuit emphasized that Thomas spent nine months in federal custody
during which he could have filed his § 2255 motion, including several weeks at the end of the
limitation period. The only dates Sheba provides are the date of his judgment of conviction in
federal court, the date he was sentenced on the state court charges, and the date he returned to
federal prison. As such, the Court cannot determine the specific periods of time Sheba spent in
state and federal custody. The Court notes, however, that Sheba was sentenced in state court on
September 26, 2012, two months after the limitations period expired.
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VI.
CONCLUSION
For the reasons expressed in the foregoing Opinion, the Court dismisses Sheba’s § 2255
Motion as untimely and declines to issue a certificate of appealability. An appropriate Order
follows.
/s/ Freda L. Wolfson___________
Freda L. Wolfson
United States District Judge
Date: January 19, 2016
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