FIGUEROA v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________________

ANTONIO FIGUEROA, :

:

Petitioner, : Civ. No. 16-8081 (RBK)

:

v. :

:

UNITED STATES OF AMERICA, : OPINION

:

Respondent. :

_________________________________________ :

ROBERT B. KUGLER, U.S.D.J.

Petitioner, Antonio Figueroa, is a federal prisoner who, at the time of filing, was

incarcerated at the Federal Prison Camp in Ashland, Kentucky. Petitioner filed a motion to vacate,

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below,

Petitioner’s motion will be denied and a certificate of appealability shall not issue.

I. FACTUAL BACKGROUND

On direct appeal, the United States Court of Appeals for the Third Circuit provided the

following summary of Petitioner’s underlying criminal proceedings:

Figueroa joined the police force in Camden, New Jersey, in 2003. In

July 2008, he was transferred to a new Special Operations Unit

created to target guns, drugs and violence in Camden's most crime

ridden neighborhoods. Figueroa was assigned to the “fourth

platoon” with his regular partner, Robert Bayard, as well as Sergeant

Dan Morris, and officers Jason Stetser and Kevin Parry. On

September 6, 2011, Figueroa and Bayard were charged in a six count

superseding indictment with a series of civil rights violations. In

addition to five substantive civil rights violations, they were charged

with conspiring with Stetser, Parry, and Morris to deprive others of

their civil rights. A three week jury trial began on November 15,

2011. Stetser, Parry, and Morris all testified at trial as cooperating

witnesses with plea agreements. Other law enforcement officers and

citizens who were victims of or witnesses to the activities alleged in

the indictment also testified. Over the course of trial, the government

presented evidence regarding twelve incidents in which Figueroa

allegedly deprived individuals of their civil rights.

[. . .]

On December 9, 2011, the jury returned a guilty verdict against

Figueroa on Count 1 of conspiracy to deprive others of civil rights

and on Counts 2 and 3 of substantive civil rights violations relating

to incidents occurring between September 14 and September 17,

2008. The jury acquitted Figueroa of the remaining counts and

acquitted Bayard on all counts. Figueroa filed motions for a

judgment of acquittal, or in the alternative, a new trial under Federal

Rules of Criminal Procedure 29 and 33 on December 23, 2011. The

District Court denied both motions. He was sentenced to ten years

imprisonment on September 7, 2012.

United States v. Figueroa, 729 F.3d 267, 270–71 (3d Cir. 2013) (footnotes omitted).

The Third Circuit affirmed Petitioner’s conviction and sentence on direct appeal. See id.

On January 27, 2014, the United States Supreme Court denied Petitioner’s request for a writ of

certiorari. See Figueroa v. United States, 571 U.S. 1181 (2014).

On October 18, 2015, Petitioner filed a motion before this Court requesting a reduction of

his sentence pursuant to 18 U.S.C. § 3582(c)(2). His motion was predicated upon Amendment

782 to the United States Sentencing Guidelines (“Sentencing Guidelines”), which reduced the base

offense level for most drug offenses. See United States v. Culmer, 767 F. App’x 368, 370 (3d Cir.

2019) (citing Hughes v. United States, ––– U.S. ––––, 138 S.Ct. 1765, 1774 (2018)). Petitioner’s

request for a reduction of his sentence was granted on December 10, 2015. See United States v.

Figueroa, No. 1:10-cr-00685, ECF No. 116 (D.N.J. 2015). Petitioner’s sentence was reduced from

120 months imprisonment to 97 months imprisonment. See id.

On October 25, 2016, Petitioner filed the instant § 2255 motion, raising the following

claims:

GROUND ONE: The trial court erred in admitting evidence of a

powerfully inculpatory out of court statement of the co-defendant

Bayard which was not subject to cross examination.

GROUND TWO: The court erred in excluding as cumulative the

police report proffered by the defense while admitting numerous

similar police reports offered by the prosecution.

GROUND THREE: The trial court erred in allowing prosecution

fact witness to offer expert testimony on issues of constitutional law.

GROUND FOUR: The jury charge on the mental element of the

civil rights offense did not adequately charge the specific intent

required by the statute.

GROUND FIVE: The court below erred in applying the drug

distribution sentencing guidelines to the civil rights violations in this

case. Resulting in a sentence that was legally incorrect and

substantially unreasonable.

GROUND SIX: This was included in the appeals filed previously

and not sustained in those deliberations but which are resubmitted

for consideration in light of the new circumstances and new

application of court decisions with regard to the: [sic]

Newly amended 3B1.2 now states that a defendant who does not

have a proprietary interest in the criminal activity and who is simply

paid to perform certain tasks should be considered.

Appellee Figueroa was not a fiduciary in this case, and was simply

an incidental party to the case. His role was so minimal so as to be

inconsequential to the overall scheme.

GROUND SEVEN: Trial counsel for defendant Figueroa was

ineffective in not raising all of the proper defenses in this case at

trial. Further, the defense counsel failed to object to the introduction

of spurious and what should have been inadmissible evidence

against Figueroa. As a result, the Defendant/Appellee was denied

proper representation in all of the pertinent matters and therefore

denied full justice in the trial court.

(ECF No. 1.)

On January 20, 2017, Respondent submitted their Answer asserting that Petitioner’s

motion was not only time-barred, but that it was also without merit. (ECF No. 6.) Petitioner filed

a reply shortly thereafter. (ECF No. 7.)

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a motion to vacate, set aside or correct a sentence of a person in

federal custody entitles a prisoner to relief if “the sentence was imposed in violation of the

Constitution or laws of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise

subject to collateral attack.” 28 U.S.C. § 2255(a). When considering a § 2255 motion, a district

court “ ‘must accept the truth of the movant’s factual allegations unless they are clearly frivolous

on the basis of the existing record.’ ” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015)

(quoting United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005)). Additionally, a district court

must hold an evidentiary hearing on the motion if “ ‘the files and records do not show conclusively

that [the movant] was not entitled to relief.’ ” Tolliver, 800 F.3d at 141 (alteration in original)

(quoting Solis v. United States, 252 F.3d 289, 294 (3d Cir. 2001)).

III. DISCUSSION

A. Timeliness

The Government asserts that Petitioner’s § 2255 motion should be dismissed as untimely

because it was filed after the one-year statute of limitation period. Generally, under 28 U.S.C. §

2255, petitioners have one year to submit their § 2255 application. See 28 U.S.C. § 2255(f). This

limitation period begins to run from the latest of the following:

(1) the date on which the judgment of conviction becomes final1;

1 A judgement of conviction becomes final either upon the date that the Supreme Court “affirms

the conviction and sentence on the merits or denies the defendant’s timely filed petition for

certiorari,” or the date upon which “the defendant’s time for filing a timely petition for certiorari

(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.

28 U.S.C. § 2255(f).

Here, Petitioner’s judgment of conviction became final on January 27, 2014, the date the

Supreme Court denied his petition for certiorari. His statute of limitation period tolled one year

later, in January 2015.2 Yet, Petitioner did not file the instant § 2255 motion until October 25,

2016, more than two and a half years after the date his conviction became final. Accordingly,

Petitioner’s motion appears barred by the one-year statute of limitation.

review expires.” Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999); see also Gonzalez v.

Thaler, 565 U.S. 134, 149 (2012); Clay v. United States, 537 U.S. 522, 532 (2003).

2 This Court’s December 10, 2015 Order reducing Petitioner’s sentence did not impact the time

for his filing of a § 2255 motion. Under 18 U.S.C. § 3582(b), a judgment of conviction is

considered a final judgment even if the sentence is later modified pursuant to the provisions of

subsection (c) of § 3582. Therefore, although Petitioner’s sentence was reduced pursuant to 18

U.S.C. § 3582(c)(2), it did not affect the finality of his conviction. See Tejeda v. United States,

No. 17-473, 2018 WL 783069, at *3 (D.N.J. Feb. 7, 2018) (“Courts have thus long held that §

3582(c)(2) reductions have no effect on the finality of a movant’s sentence for the purposes of

determining the timeliness of a § 2255 motion.”); see also United States v. Schwartz, 274 F.3d

1220, 1224 (9th Cir. 2001); see also United States v. Sanders, 247 F.3d 139, 142–43 (4th Cir.

2001).

Petitioner argues, however, that his motion is timely based upon recent decisions of

“various courts” which allow for a reconsideration of his sentence.3 (ECF. No. 7 at 2.) Petitioner,

seeming to rely on § 2255(f)(3), alleges that a new amendment to the Sentencing Guidelines passed

in 2015 and recent case law holding that the amendment is retroactive, provides him with a new

avenue relief that was not previously available. (Id.) Yet, Petitioner’s argument, if true, only

applies only to Ground Six of his § 2255 – his singular claim challenging his sentence. Grounds

One through Five of Petitioner’s § 2255 raise issues of trial court error that were previously denied

by the Third Circuit upon direct review.4 See Figueroa, 729 F.3d at 270. And, Ground Seven of

Petitioner’s § 2255 raises an ineffective assistance of trial counsel claim, the underlying facts of

which were known to Petitioner at the time his conviction became final. Thus, Petitioner has not

3 In extraordinary circumstances, the limitations period for the filing of a § 2255 motion may be

equitably tolled. See Ross v. Varano, 712 F.3d 784, 798-99 (3d Cir. 2013). The Supreme Court

has held that a petitioner seeking to establish equitable tolling must demonstrate: “(1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way.” Id. at 798 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). However, Petitioner

did not advance this argument in reply to the Government’s assertion that his motion was time

barred and Petitioner has not alleged any facts which would indicate equitable tolling.

4 On direct appeal, Petitioner raised the following challenges to his conviction:

(1) the District Court erred by admitting the out-of-court statement

of co-defendant Robert Bayard, (2) the District Court erred by

excluding, as cumulative, police reports that Figueroa offered into

evidence, (3) the District Court erred by allowing improper expert

opinion testimony from a prosecution fact witness on issues of

constitutional law, and (4) the District Court erred by refusing to

give the jury Figueroa's requested instruction concerning specific

intent.

Figueroa, 729 F.3d at 270.

Petitioner also argued that his sentence was unlawful because “the District Court erred by applying

the drug distribution sentencing guideline to Figueroa’s civil rights violations” and because “his

sentence was substantively unreasonable.” Id.

demonstrated that any of his claims are not barred by the statute of limitations, except for Ground

Six.

B. Ground Six

In Petitioner’s Ground Six, he argues that a change in the commentary to Section 3B1.2 of

the Sentencing Guidelines, and Ninth Circuit case law making that change retroactive, has

provided him with a ground for relief that was previously unavailable. (ECF No. 1 at 12; ECF No.

7 at 2.) Specifically, Petitioner appears to contend that he is entitled to relief under Amendment

794, which took effect November 1, 2015, and “modified the commentary to U.S.S.G. § 3B1.2,

which provides guidance in determining whether a sentence reduction should apply based on the

minor role of the defendant.” See United States v. Fausnaught, No. 3:03-CR-32, 2018 WL

1917131, at *2 (M.D. Pa. Apr. 20, 2018); (ECF No. 1 at 12.) To support his argument that

Amendment 794 has been made retroactive, Petitioner relies primarily upon United States v.

Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016). (ECF No. 1 at 9; ECF No. 7 at 2.) The Government

maintains that Petitioner’s claim is still time-barred, however, because Amendment 794 is not a

newly recognized right that was made retroactive on collateral appeal, and to the extent Petitioner

was seeking a sentence reduction, this claim is not properly raised on a § 2255 motion. (ECF No.

6 at 4.)

Generally, to receive a retroactive application of a Sentencing Guidelines change, a

petitioner must bring a motion under 18 U.S.C. § 3582(c)(2). See Fausnaught, 2018 WL 1917131,

at *3; see also Dillion v. United States, 560 U.S. 817, 824 (2010) (“Section 3582(c)(2) establishes

an exception to the general rule of finality ‘in the case of a defendant who has been sentenced to a

term of imprisonment based on a sentencing range that has subsequently been lowered by the

Sentencing Commission…’ ” (quoting 18 U.S.C. § 3582(c)(2))). The Third Circuit has not yet

ruled on “whether a district court may construe a § 2255 motion as one filed under § 3582(c)(2).”

Fausnaught, 2018 WL 1917131, at *3 (quoting Mendoza v. United States, 2017 WL 1293575, at

*4 (W.D. Pa. Apr. 6, 2017)). However, courts are instructed to construe a pro se petitioner’s

motion “with an eye toward their substance rather than their form.” United States v. Delgado, 363

F. App’x 853, 855 (3d Cir. 2010) (citing United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999));

see also United States v. Kuran, Nos. 16–4575, 13–160, 2017 WL 914816, at *4 (E.D. Pa. Mar. 8,

2017) (stating that where a pro se petitioner’s § 2255 motion also raises a claim regarding

Amendment 794 to the Sentencing Guidelines, the court should liberally construe the filing and

interpret the motion as one attempting to modify the petitioner’s sentence). Accordingly, this

Court will also consider Petitioner’s claim to the extent that he would be able to raise it under §

3582.

Section 3582(c)(2) permits a sentence reduction for defendants who were imprisoned based

upon a “sentencing range that has subsequently been lowered by the Sentencing Commission.”

See 18 U.S.C. § 3582(c)(2). However, the amendment that reduces the guidelines range must be

among those enumerated under U.S.S.G. § 1B1.10(d) as applying retroactively. See United States

v. Brown, 694 F. App’x 62, 63 (3d Cir. 2017) (citing United States v. Wise, 515 F.3d 207, 221 &

n.11 (3d Cir. 2008)). “Thus, if Petitioner’s motion relies on an amendment that does not appear in

§ 1B1.10(d), he would not be eligible for a sentence reduction under § 3582(c)(2).” Fausnaught,

2018 WL 1917131, at *3. In the instant case, the amendment Petitioner refers to, Amendment

794, is not listed under § 1B1.10(d). See generally U.S.S.G. § 1B1.10(d). “Relief pursuant to

Amendment 794 is not available to [Petitioner] as that amendment, which took effect after his

sentencing, has not been made retroactive.” United States v. Spruill, -- F. App’x --, 2019 WL

2184800, at *2 (3d Cir. May 21, 2019); see also Brown, 694 F. App’x at 63 (“Brown is not eligible

for a sentence reduction, as the Sentencing Commission has not listed Amendments 791, 792, or

794 is U.S.S.G. § 1B1.10(d) as amendments that apply retroactively.”). Consequently, Petitioner

is not entitled to relief pursuant to Amendment 794, which took effect three years after his

sentencing, because the amendment has not been made retroactive. Although Petitioner alleges

that the Ninth Circuit in Quintero-Leyva made the amendment retroactive, Ninth Circuit precedent

is not binding on this Court. And, Third Circuit case law, which is binding on this Court, has

expressly held that Amendment 794 is not retroactive. See Spruill, 2019 WL 2184800, at *2; see

also Brown, 694 F. App’x at 63. Therefore, to the extent Petitioner could raise this sentencing

claim in the instant motion, it is still without merit.

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c)(2), an appeal from a final order in a § 2255 proceeding

may not be taken to the court of appeals 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). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States

Supreme Court held 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 district court was

correct in its procedural ruling.” Here, this Court denies a certificate of appealability pursuant to

28 U.S.C. § 2255(c) because jurists of reason would not find it debatable that the denial of

Petitioner’s motion is correct.

V. CONCLUSION

For the reasons stated above, the Petitioner’s habeas petition is DENIED and a certificate

of appealability shall not issue. An appropriate Order follows.

DATED: August 1, 2019 s/Robert B. Kugler

ROBERT B. KUGLER

United States District Judge