GEORGE v. UNITED STATES OF AMERICA
OPINION filed. Signed by Judge Anne E. Thompson on 2/27/2018. (km)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
C. TATE GEORGE,
HONORABLE ANNE E. THOMPSON
No. 17-2641 (AET)
UNITED STATES OF AMERICA,
THOMPSON, District Judge:
FEB 2 7 2018
AT 8:30 _ __....~~~M
WILLIAM T. WALSH
This matter comes before the Court on Petitioner C. George Tate's motion for judgment
on the pleadings, (ECF No. 29), and Motion Under Rule 1003 (ECF No. 34). For the reasons
stated herein, the motions are denied.
Petitioner was convicted of four counts of wire fraud, 18 U.S.C. §§ 1343 & 2, after a jury
trial before the Honorable Mary L. Cooper, U.S.D.J. United States v. George, No. 12-cr-0204
(D.N.J. Jan. 21, 2016). The United States Court of Appeals for the Third Circuit affirmed the
convictions and 108-month sentence in April 2017. United States v. George, 684 F. App'x 223
(3d Cir. 2017). Petitioner filed his motion to correct, vacate, or set aside his federal sentence
under 28 U.S.C. § 2255 on April 28, 2017. (ECF No. 1). Judge Cooper administratively
terminated the motion on May 1, 2017 as Petitioner had not used the form provided by the
Clerk's Office for § 2255 motions. (ECF No. 2). Petitioner resubmitted his petition on the proper
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form on July 7, 2017. (ECF No. 7). The matter was reassigned to the undersigned on July24,
After Petitioner filed several motions to amend his petition as well as several
supplemental exhibits, the Court issued an order to answer on September 1, 2017. (ECF No. 16).
Respondent did not file its answer within the time frame ordered by the Court, and the Court
issued_ an Order to Show Cause on November 20, 2017. (ECF No. 25). Respondent answered the
Order to Show Cause and requested until January 21, 2018 to answer the motion. (ECF No. 27).
The Court vacated the Order to Show Cause and granted the request. (ECF No. 28). Petitioner
filed this motion for judgment on the pleadings. (ECF No. 29).
Petitioner sent seventeen binders containing approximately 3,000 pages to chambers
claiming they were "exculpatory and impeaching" evidence trial counsel failed to present at trial.
(See ECF No. 31 ). The Court returned the binders to Petitioners untiled and issued an order
prohibiting him from sending further filings to chambers. (ECF No. 32). Petitioner thereafter
filed a motion citing Federal Rule of Evidence 1003 and asking to file the binder materials
without resubmitting them to the Court or sending copies of the binders to Respondent. 1
"A motion for judgment on the pleadings should be granted if the movant establishes that
'there are no material issues of fact, and he is entitled to judgment as a matter of law.'"
Zimmerman v. Corbett, 873 F.3d 414, 417 (3d Cir. 2017) (quoting Sikirica v. Nationwide Ins.
Co., 416 F.3d 214, 220 (3d Cir. 2005)). The Court "must view the facts presented in the
pleadings and the inferences to be drawn therefrom in the light most favorable to the nonmoving
party." Sikirica, 416 F.3d at 220. Petitioner's sole argument in support of his motion is that
certificate of service only states that the motion was sent to Respondent. (ECF No. 34 at 4).
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Respondent failed to file a timely answer. This is not an argument for judgment on the pleadings;
Petitioner is asking for a default judgment.
As this Court noted in its opinion denying Petitioner's prior motion for a default
judgment, "[d]efaultjudgment is inapplicable in the habeas context." Riley v. Gilmore, No. 15351, 2016 WL 5076198, at *1 n.2 (E.D. Pa. Sept. 20, 2016), certificate ofappealability denied
sub nom. Riley v. Superintendent Greene SCI, No. 16-3954, 2017 WL 5068120(3d Cir. Feb. 9,
2017). See also In re West, 591 F. App'x 52, 54 n.3 (3d Cir. 2015) ("Even ifthe Government had
failed to respond to the § 2255 motion, it does not follow that West is entitled to a default
judgment."). "Indeed, the rule of civil procedure governing entry of default, Rule 55(d),
specifically states that a 'default judgment may be entered against the United States ... only if
the claimant establishes a claim or right to relief by evidence that satisfies the court' even outside
of the habeas context." Norwood v. United States, No. 15-2996, 2015 WL 5822874, at *3 (D.N.J.
Sept. 30, 2015) (quoting Fed. R. Civ. P. 55(d) (omission in original)). The case cited by
Petitioner, Consolidated Freightways Corporation ofDelaware v. Larson, 827 F.2d 916 (3d Cir.
1987), is inapplicable as it is an analysis of Federal Rule of Appellate Procedure 4. Petitioner has
not provided sufficient evidence to satisfy the Court he is entitled to relief under§ 2255.
Federal Rule of Evidence 1003 is not an independent basis for admissibility. It merely
permits the party to provide a duplicate instead of the original "[w ]hen the only concern is with
getting the words or other contents before the court with accuracy and precision .... " Fed. R.
Evid. 1003 Advisory Committee Note. Petitioner has not resubmitted the proposed evidentiary
materials, nor has he complied with the Court's instructions to file "a formal motion to
supplement or amend Petitioner's § 2255 petition with specific explanations as to how each
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document is relevant to his§ 2255 motion." (ECF No. 32). Nor has he served Respondent with a
copy of the materials so that it may respond to them.
The motions are denied.
For the reasons stated above, Petitioner's motions are denied. An accompanying Order
will be entered.
ANNE E. THOMPSON
U.S. District Judge
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