SEALE v. UNITED STATES OF AMERICA

Filing 2

MEMORANDUM OPINION filed. Signed by Judge Anne E. Thompson on 9/27/2018. (mmh)

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

ARTHUR D. SEALE,

HONORABLE ANNE E.

SEP 2 7 2018
AT 8:30
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Petitioner,
Civil Action
No. 18-9075 (AET)

V.

UNITED STATES OF AMERICA,

MEMORANDUM OPINION
Respondent.

THOMPSON, U.S. District Judge:
Petitioner Arthur D. Seale is proceeding prose with a motion to correct, vacate, or set
aside his federal sentence pursuant to 28 U.S.C. § 2255. (ECF No. 1).
1.

Petitioner pled guilty to a seven-count indictment for his role in the 1992

kidnapping and attempted ransom of Sidney J. Reso, president of an Exxon subsidiary. The plot
ultimately resulted in Mr. Reso' s death. Petitioner was sentenced to 95 years in prison with a
five-year term of supervised release, and ordered to pay a $1. 75 million fine and $350 in special
assessments. See United States v. Seale, No. 92-cr-0372 (D.N.J. Dec. 3, 1992). 1
2.

The United States Court of Appeals for the Third Circuit reversed and remanded

for recalculation of the fine. United States v. Seale, 20 F.3d 1279, 1281-82 (3d Cir. 1994). The
Honorable Garrett E. Brown, Jr., D.N.J., resentenced Petitioner to a $75,000 fine on July 18,
1994.
3.

Over twenty years later, Petitioner filed this motion under§ 2255 raising three

grounds for relief: (1) his sentence is unconstitutional in light of the Supreme Court's recent

1 See

28 U.S.C. § 2255 Rule 4(b) (permitting courts to consider "the record of prior proceedings"
in initial review of§ 2255 motions).

decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct.
1204 (2018); (2) his sentence is unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000); and, (3) his federal sentence should be concurrent to his state sentence.
4.

The Court must now review the motion under the Rules Governing§ 2255

Proceedings. As Petitioner is proceeding prose, his petition is held to less stringent standards
than those pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)
("It is the policy of the courts to give a liberal construction to pro se habeas petitions.") (internal

quotation marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007)
("[W]e construe prose pleadings liberally.") (citing Haines v. Kerner, 404 U.S. 519, 520
(1972)).
5.

Nevertheless, "[i]f it plainly appears from the motion, any attached exhibits, and

the record of prior proceedings that the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving party." 28 U.S.C. § 2255 Rule 4(b).
6.

Presuming this Court has jurisdiction,2 the motion is barred by the one-year

statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA").
7.

AEDPA's limitation period runs from the latest of four dates:
( 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

2

This is Petitioner's numerically second motion under 28 U.S.C. § 2255. See Seale v. United
States, No. 07-4356 (D.N.J. withdrawn Feb. 27, 2009). The Third Circuit has no "precedential
opinion addressing the precise question here: when does a voluntarily withdrawn§ 2255 motion
or habeas petition 'count' so that a numerically second motion or petition will be deemed a
'second or successive' filing within the meaning of§ 2244?" United States v. Doe, 810 F.3d
132, 150 (3d Cir. 2015) (declining to answer question).

2

States i~ 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; ot
(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).
8.

For purposes of§ 2255(f)(l), Petitioner's conviction became "final" on April 24,

1996, the effective date of AEDPA. See Merritt v. Blaine, 326 F.3d 15,7, 161 (3d Cir. 2003);
Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001); Burns v. Morton, 134 F.3d 109, 111 (3d Cir.
1998).
9.

Petitioner asserts his petition is timely based on the Supreme Court's decisions in

Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204
(2018). See also 28 U.S.C. § 2255(£)(3).
10.

Johnson was decided June 26, 2015. 3 A timely§ 2255 motion based on Johnson

was due on June 26, 2016. Petitioner did not file his motion until May 5, 2018, nearly two years
too late.
11.

Dimaya did not announce a new rule of constitutional

law~

it merely applied

Johnson's holding. See Dimaya, 138 S. Ct. at 1213 ("Johnson is a straightforward decision, with
equally straightforward application here."). Dimaya does not reset the statute of limitations under
§ 2255(£)(3). As such, and because Dimaya has not been rendered retroactive to collateral review
cases, Dimaya does not save Petitioner's§ 2255 claims from being time barred.

3

The Supreme ctjurt determined Johnson is retroactive to cases on collateral review in Welch v.
United States, 136 S. Ct. 1257 (2016).
3

12.

AEDPA's statute oflimitations is subject to equitable tolling in appropriate cases,

however. See Hollandv. Florida, 560 U.S. 631, 645 (2010). "Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his
rights diligently; and (2) that some extraordinary circumstance stood in his way." Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
13.

"The diligence required for equitable tolling purposes is reasonable diligence, not

maximum, extreme, or exceptional diligence .... 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 case." Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013).
14.

"The fact that a petitioner is proceeding prose does not insulate him from the

'reasonable diligence' inquiry and his lack of legal knowledge or legal training does not alone
justify equitable tolling." Id. at 799-800.
15.

In analyzing whether the circumstances faced by Petitioner were extraordinary,

"'the proper inquiry is not how unusual the circumstance alleged to warrant tolling is among the
universe 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, 654 F.3d
385, 400 (3d Cir. 2011)) (emphasis in original).
16.

"In addition, for a petitioner to obtain relief there must be a causal connection, or

nexus, between the extraordinary circumstances he faced and the petitioner's failure to file a
timely federal petition." Id.
17.

In the interests of justice, Petitioner shall be ordered to show cause why his

petition should not be dismissed as untimely under 28 U .S.C. § 2255(f).

4

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18.

Any response by Petitioner shall state with specificity any facts that may entitle

him to equitable tolling of the statute of limitations.
19.

An appropriate order follows.

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ANNE E. THOMPSON
U.S. District Judge

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