LYNN v. UNITED STATES OF AMERICA

Filing 11

OPINION filed. Signed by Judge Anne E. Thompson on 12/29/2015. (kas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HONORABLE ANNE E. THOMPSON

EFRAIN LYNN,
Petitioner,

Civil Action
No. 13-5730 (AET)

v.
UNITED STATES OF AMERICA,

OPINION
Respondent.

RECEIVED

APPEARANCES:
EFRAIN LYNN, Petitioner pro se
#28601-050
USP McCreary
P.O. Box 3000
Pine Knot, Kentucky 42635

ncr
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2 9 2015

AT8:30
WILLIAM T. WALSH
CU:RK

M

THOMPSON, District Judge:
I.INTRODUCTION
Before the Court is Petitioner Efrain Lynn's ("Petitioner")
Motion to Vacate, Correct, or Set Aside his sentence pursuant to 28
U.S.C. § 2255.

(Docket Entry 1). For the reasons stated herein, the

Court will dismiss the motion as time-barred, and no certificate of
appealability will issue.
I I .

BACKGROUND
Petitioner and his co-defendants were tried before a jury for

a series of four armed bank robberies that occurred between
February and March 2007. Petition was ultimately convicted of
conspiracy to commit bank robbery, 18 U.S.C. § 1951 (Count One);
two counts of bank robbery, 18 U.S.C. § 2113(a)

(Counts Six and

Eight); and two counts of possession and discharge of a firearm
during a crime of violence, 18 U.S. C. § 924 ( c) ( 1) (A)
and Nine).

(Docket Entry 1

No. 07-0454-03 (AET)

<JI

(Counts Seven

4); see also United States v. Lynn,

(D.N.J. 2009). He was acquitted of robbing the

Bank of America East Brunswick branch, 18 U.S.C. §§ 2113(a),

(d)

(Count Four); and possessing and discharging of a firearm during
the course of that robbery, 18 U.S.C. § 924(c) (1) (A)
Lynn, No. 07-00454-03 (D.N.J. May 28, 2009)

(Count Five).

(judgment of

conviction) .
At sentencing, this Court included the East Brunswick robbery
with the mandatory minimums as relevant conduct, as the Court found
that Petitioner had clearly participated in the robbery. As a
result, his advisory Guidelines range was 519 to 552 months. This
Court used its discretion to sentence Petitioner to 481-months
imprisonment, followed by five years of supervised release.
Petitioner timely appealed to the Court of Appeals for the Third
Circuit. On March 24, 2011, the Third Circuit affirmed his
convictions and sentence. United States v. Herrera-Genao, 419 F.
App'x 288, 291

(3d Cir. 2011). He did not file a petition for writ

of certiorari with the United States Supreme Court.
<JI

(Docket Entry 1

9(g)).
Petitioner filed the instant § 2255 motion on September 17,

2013.

(Docket Entry 1 at 13). On May 20, 2014, this Court advised

Petitioner of his rights under United States v. Miller, 197 F.3d
644

(3d Cir. 1999), and directed Petitioner to inform the Court
2

within 45 days as to how he wanted to proceed.

(Docket Entry 2). On

June 3, 2014, the Miller order was returned to the Court as
undeliverable.

(Docket Entry 4). This Court resent the Miller order

to Petitioner at his new location on August 28, 2014.

(Docket Entry

5). The Miller order was again returned to the Court as
undeliverable on September 9, 2014.

(Docket Entry 6). The Miller

order was sent to Petitioner once again on December 19, 2014, along
with an advisement that failure to respond to the Court with
Petitioner's current address may result- in the motion being
dismissed for failure to prosecute.

(Docket Entry 7). Petitioner

submitted a change of address to the Court on January 5, 2015.
(Docket Entry 8). Petitioner has not notified the Court regarding
its Miller order, therefore pursuant to Miller, 197 F.3d at 652
n.7, and this Court's May 20, 2014 order, the petition is being
ruled upon as filed.
As the motion was filed more than a year after Petitioner's
judgment of conviction became final, 28 U.S.C. § 2255(f) (1), the
Court ordered Petitioner to show cause why the motion should not be
dismissed as untimely.

(Docket Entry 10). Petitioner did not

respond to the order to show cause.
III. STANDARD OF REVIEW
Petitioner brings this motion as a pro se litigant. A pro se
pleading is held to less stringent standards than more formal
pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106
(1976); Haines v. Kerner,

404 U.S. 519, 520 (1972). A prose habeas

3

petition and any supporting submissions must be construed liberally
and with a measure of tolerance. See Royce v. Hahn, 151 F.3d 116,
118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721-22
(3d Cir. 1989); United States v. Brierley, 414 F.2d 552, 555 (3d
Cir. 1969), cert. denied, 399 U.S. 912 (1970).
A federal district court must dismiss a § 2255 motion if it
appears from the face of the petition that the petitioner is not
entitled to relie£. 28 U.S.C. § 2255 Rule 4(b).
IV. ANALYSIS
In his motion, Petitioner argues his trial counsel was
ineffective during plea negotiations, trial, and sentencing. He
also asserts resentencing is required under Alleyne v. United
States, which held that "any fact that increases the mandatory
minimum is an 'element' that must be submitted to the jury." 133
S. Ct. 2151, 2155 (2013).
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), imposes a one-year statute of limitations for filing a
federal petition for habeas corpus. Under§ 2255(f), 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
4

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). Petitioner argues the one-year limitations
period should be calculated from June 17, 2013, the date of the
Alleyne decision.

(Docket Entry 1 at 12).

Section 2255 permits filing within one year of "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."
28 U.S.C. § 2255(f) (3). The Third Circuit held in United States v.
Winkelman that "Alleyne cannot be applied retroactively to cases on

collateral review[,]" and therefore could not be the basis for a
second or successive § 2255 motion. 746 F.3d 134, 136 (3d Cir.
2014); see also 28 U.S.C. § 2255 (h) (2)

(permitting second or

successive motions when a court of appeals finds the motion to
contain "a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously· unavailable.").
The Third Circuit revisited Alleyne in United States v. Reyes,
755 F.3d 210 (3d Cir.), cert. denied, 135

s.

Ct. 695 (2014), where

it confirmed Alleyne announced a new rule of law, id. at 212.
Noting that the Supreme Court had not specifically held Alleyne to
be retroactive to cases on collateral review and that "Alleyne

5

provides only a limited modification to the Sixth Amendment rule
announced in Apprendi v. New Jersey, 530 U.S. 466 (2000)," the
Third Circuit again confirmed Alleyne was not retroactive to cases
on collateral review. Id. at 212-13 (citing Tyler v. Cain, 533 U.S.
656, 663 (2001)). Petitioner cannot rely on Alleyne as the starting
point of AEDPA's one-year limitations period under 28 U.S.C. §
2255 (f) (3).
AEDPA's limitations period began on "the date on which the
judgment of conviction becomes final." 28 U.S.C. § 2255(f) (1) . 1 The
judgment of conviction became final ninety (90) days after the
Third Circuit's decision, i.e., June 23, 2011, which represents the
time during which Petitioner could have petitioned for a writ of
certiorari. Greene v. Palakovich, 606 F.3d 85, 91 (3d Cir. 2010)
(citing Kapral v. United States, 166 F.3d 565,

570~71

(3d Cir.

1999)), aff'd sub nom Greene v. Fisher, 132 S. Ct. 38 (2011). He
therefore had until June 25, 2012, 2 to timely file his § 2255
motion. He did not hand his motion to prison official for mailing,
however, until September 17, 2013, over a year late.
1 at 13); see also Burns v. Morton,
1998)

(Docket Entry

134 F.3d 109, 113 (3d Cir.

(for pro se motions, the motion is deemed filed when the

prisoner puts it into the prison mail system). Furthermore,
Petitioner's other claims of ineffective assistance of counsel,

1

Petitioner does not assert the United States prevented him from
filing his motion. See 28 U.S.C. § 2255(f) (2).
2 June 23, 2012 was a Saturday. See Fed. R. Civ. Pro. 6(a) (1) (C).
6

various sentencing errors, and violations of his Fifth Amendment
right to remain silent could have been and should have been raised
within the one-year limitations period or on direct appeal.
As AEDPA's statute of limitations is subject to equitable
tolling in appropriate cases, Holland v. Florida, 560 U.S. 631, 645
(2010), the Court gave Petitioner an opportunity to set forth facts
that he believed entitled him to equitable tolling.

(Docket Entry

10). Petitioner did not respond to the Court's Order. As the motion
does not set forth any facts that would entitle Petitioner to
equitable tolling, and Petition has not supplied any in response to
the Court's Order to Show Cause, the motion must be dismissed as
untimely.
AEDPA provides that an appeal may not be taken to the court of
appeals from a final order in a § 2255 proceeding unless a judge
issues a certificate of appealability on the ground that "the
applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c) (2). The 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 underlying constitutional claim, a COA should issue when
the 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 would find it
debatable whether the district court was correct in its procedural
ruling." 529 U.S. 473, 484

(2000)~

7

This Court denies a certificate

of appealability because jurists of reason would not find it
debatable that dismissal of the petition as untimely is correct.

V. CONCLUSION
For the reasons stated above, Petitioner's Motion to Vacate,
Correct, or Set Aside his sentence is dismissed as untimely under
28 U.S.C. § 2255(f). No certificate of appealability shall issue.
An accompanying Order will be entered.

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THOMPSON'_~-::::...._
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/h---->

ANNE E •

U.S. District Judge

8