COLON v. UNITED STATES OF AMERICA

Filing 2

MEMORANDUM filed. Signed by Chief Judge Freda L. Wolfson on 11/18/2021. (jmh)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANGEL LUIS COLON,

Civil Action No. 21-15926 (FLW)

Petitioner,
v.

MEMORANDUM

UNITED STATES OF AMERICA,
Respondent.

Petitioner Angel Luis Colon, 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”). 1
On December 10, 1996, Petitioner pleaded guilty to murder in Essex County Superior
Court. On January 31, 1997, he was sentenced to a 30-year mandatory minimum term of
incarceration. On July 15, 1997, Colon pled guilty in the United States District Court, District of
New Jersey, to being a felon in possession of a firearm in violation of 18 U.S.C. § 992(g). See
Crim. No. 97-680. On April 3, 1998, Colon was sentenced to incarceration for a term on 82
months: “22 months to run concurrent and 60 months to run consecutive to the defendant's
imprisonment under any previous state or federal sentence.” ECF Doc. 14 at 23 of 27 (attached
to Colon Motion). Petitioner did not file a direct appeal.

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At the time he filed his motion, Petitioner was confined at East Jersey State Prison. The New
Jersey Inmate Locator indicates that Petitioner is currently confined at South Woods State
Prison. As such, the Court will direct the Clerk of the Court to send this Memorandum and the
accompanying Order to both locations.
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On March 5, 2008, Petitioner filed a motion to modify his federal sentence to run
concurrent with his state sentence motion, pursuant to 18 U.S.C. §§ 3584(a) and 3553(a). That
motion was denied by the Court on April 23, 2009. See id. at Nos. 14, 17-18.
On August 23, 2021, the instant motion pursuant to § 2255 was docketed. See ECF No.
1. The motion is dated August 16, 2021. See id. Petitioner raises a single ground for relief and
asserts that the consecutive portion of his 1998 federal sentence violates the Fourteenth and
Eighth Amendments. See id. at 5.
At this time, the Court must screen Petitioner’s § 2255 motion for summary dismissal
pursuant to Rule 4 of the Rules Governing Section 2255 Cases in the United States District
Court. Pursuant to its screening authority, the Court must direct the government to file an
answer unless it “plainly appears from the motion, any attached exhibits and the record of prior
proceedings that the moving party is not entitled to relief . . . .”
Here, it plainly appears that Petitioner’s § 2255 motion is untimely under the one-year
limitations period prescribed by the Antiterrorism 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
final;

(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 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.
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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 (“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 [§ 2255] statute of limitation begins to run, on the date on which the time
for filing such an appeal expired.”); see also Sanchez-Castellano 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, Petitioner’s Judgment of Conviction was entered on or about April 3, 1998,
and he did not file a direct appeal. Thus, 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
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

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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).
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, 649 (2010)); see also Pace v. DiGuglielmo, 544 U.S. 408, 418,
(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
considered. 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).
Petitioner provides no reasons for the more than 20-year delay in filing his § 2255
motion. As such, he has not established a basis for equitable tolling. At this time, the Court will
dismiss the § 2255 motion without prejudice as untimely and administratively terminate this
matter. In light of his pro se status, Petitioner may file a motion to reopen this matter within 30

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days if he can provide a valid basis for equitable tolling with respect to the lengthy delay in filing
his § 2255 motion.
The Court will also deny a certificate of appealability (“COA”). A District Court may
issue a certificate of appealability “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, “a 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also United States v. Cepero, 224
F.3d 256, 262 (3d Cir. 2000). Here, the Court’s procedural rulings that the motion is untimely
and that Petitioner has not provided a basis for equitable tolling are not debatable.
As explained in this Memorandum, the § 2255 motion is dismissed without prejudice at
screening as untimely, and the Court denies a COA. The Court will administratively terminate
this matter, and Petitioner may file a motion to reopen within 30 days if he can provide a valid
basis for equitable tolling. An appropriate Order follows.

______________________
Freda L. Wolfson
U.S. Chief District Judge
11/18/2021

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