LYNN v. UNITED STATES OF AMERICA
MEMORANDUM OPINION filed. Signed by Judge Anne E. Thompson on 6/22/2015. (kas, )
IN THE·UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JUN 2 3 2015
WILLIAM T. WALSH
: EFRAIN LYNN,
No. 13-5730 (AET)
UNITED STATES OF AMERICA,
THOMPSON, District Judge:
Petitioner is proceeding pro se with a Motion to Vacate,
qorrect, or Set Aside his sentence pursuant to 28 U.S.C. § 2255.
~Docket Entry 1).
Petitioner was tried before a jury and convicted of
qonspiracy to commit bank robbery, 18 U.S.C. § 1951; two counts of
bank robbery, 18 U.S.C. § 2113(a); and two counts of possession and
discharge of a firearm during a crime of violence, 18 U.S.C. §
Q24 (c) (1) (A).
(Docket Entry 1
4). United States v. Lynn, No. 07-
Q 54 - 0 3 (AE T ) ( D . N . J . 2 0 0 9 ) .
On May 28, 2009, this Court sentenced Petitioner to 481
Jonths imprisonment followed by five years of supervised release.
Petitioner timely appealed. The Court of Appeals for the
Third Circuit affirmed the convictions and sentence. United States
419 F. App'x 288, 291 (3d Cir. 2011).
Petitioner did not file a petition for writ of
(Docket Entry 1
Petitioner filed the instant motion on September 17,
(Docket Entry 1 at 13).
On May 20, 2014, this Court advised Petitioner of his
rjights under United States v. Miller, 197 F. 3d 644 (3d Cir. 1999),
directed Petitioner to inform the Court within 45 days as to
How he wanted to proceed.
(Docket Entry 2).
On June 3, 2014, the Miller order was returned to the
(Docket Entry 4).
On August 28, 2014, this Court resent its Miller order to
Bet1t1oner at h'
lS new 1 ocat1on.
On September 9, 2014, the Miller order was again returned
to the Court as undeliverable.
( Doc k et Entry 5) .
(Docket Entry 6).
On December 19, 2014, the Miller order was sent to
~etitioner once again, along with an advisement that failure to
,espond to the Court with Petitioner's current address may result
in the motion being dismissed for failure to prosecute.
fin try 7) .
Petitioner submitted a change of address to the Court on
(Docket Entry 8).
Petitioner has not notified the Court regarding its
Miller order, therefore pursuant to Miller,
197 F.3d at 652 n.7,
this Court's May 20, 2014 order, the petition is being ruled
Jpon as filed.
Petitioner's § 2255 motion is governed by the
~ntiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
AEDPA imposes a one-year period of limitation on a federal prisoner
to challenge his conviction and sentence under § 2255.
2255(f), the limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes
(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
(3) the date on which the right asserted was initially
recogniz-ed by the Supreme Court, if that right has been
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.
In his petition, Petitioner argues his motion is timely
it was filed within one year of the Supreme Court's
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which
qeld that any fact that increases a mandatory minimum sentence must
Je submitted to a jury and proven beyond a reasonable doubt.
Entry 1 i
Although the Third Circuit recognized that Alleyne
a:nnounced a new rule, it held Alleyne "is not retroactively
~pplicable to cases on collateral review," like Petitioner's.
d States v. Reyes,
755 F.3d 210, 212 (3d Cir.), cert. denied,
Ct. 695 (2014); see also United States v. Winkelman, 746
134 (3d Cir. 2014). Petitioner therefore cannot rely on
as the starting point of AEDPA's one-year limitations
Jeriod under 28 U.S.C. § 2255(f) (3).
Additionally, Alleyne is a change of law, and is not a
"Ifact" within the meaning of § 2255 (f) (4). See Whiteside v. United
775 F.3d 180, 183-84 (4th Cir. 2014)
(en bane); Lo v.
506 F.3d 572, 574-75 (7th Cir. 2007); E.J.R.E. v. United
453 F.3d 1094, 1097-98 (8th Cir. 2006). Petitioner
t)herefore cannot use the date of the Alleyne decision as the start
the limitations period under§ 2255(f) (4).
Under§ 2255(f) (1), Petitioner's conviction became final
dinety (90) days after the Third Circuit's decision, i.e., June 22,
which represents the time during which Petitioner could have
a writ of certiorari.
AEDPA's one-year statute of limitations therefore expired
2012, well before Petitioner filed the instant petition
~etitioner also asserts claims of ineffective assistance of
~ounsel, various sentencing errors,
Jmendment right to remain silent.
(Docket Entry 1-1 at 8-11). These
and violations of his Fifth
could have been and should have been raised within the one-
Yiear limitations period.
AEDPA's statute of limitations is subject to equitable
t\olling in appropriate cases, however. See Holland v. Florida, 560
631, 645 (2010). "Generally, a litigant seeking equitable
bears the burden of establishing two elements:
(1) that he
been pursuing his rights diligently; and (2) that some
extraordinary circumstance stood in his way." Pace v. DiGuglielmo,
"The diligence required for equitable tolling purposes is
rfeasonable diligence, not maximum, extreme, or exceptional
qiligence . . . . A determination of whether a petitioner has
exercised reasonable diligence is made under a subjective test: it
must be considered in light of the particular circumstances of the
qase." Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013).
"The fact that a petitioner is proceeding pro se does not
him from the 'reasonable diligence' inquiry and his lack
4f legal knowledge or legal training does not alone justify
Jquitable tolling." Id. at 799-800.
In analyzing whether the circumstances faced by
Betitioner were extraordinary, "'the proper inquiry is not how
qnusual the circumstance alleged to warrant tolling is among the
tiniverse of prisoners,
... but rather how severe an obstacle it is
for the prisoner endeavoring to comply with AEDPA's limitations
period.'" Id. at 802-03 (quoting Pabon v. Mahanoy,
400 (3d Cir. 2011))
654 F.3d 385,
(emphasis in original).
"In addition, for a petitioner to obtain relief there
m!ust be a causal connection, or nexus, between the extraordinary
clircumstances he faced and the petitioner's failure to file a
tlimely federal petition." Ibid.
In the interests of justice, Petitioner shall be ordered
Jo show cause why his Petition should not be dismissed as untimely
uhder 28 U.S.C. § 2255(f).
Any response by Petitioner shall state with specificity
aby facts that may entitle him to equitable tolling of the statute
limitations for each of his stated grounds for relief.
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