LINDSAY v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANTHONY LINDSAY, Civil Action No. 18-17581 (SDW)

Petitioner,

v. MEMORANDUM OPINION

UNITED STATES OF AMERICA,

Respondent.

IT APPEARING THAT:

1. On December 11, 2018, Petitioner, Anthony Lindsay, filed his initial motion to vacate

sentence in this matter. (See Document 2 attached to ECF No. 1 at 2).

2. Because Petitioner did not use the required form, this Court administratively terminated

this matter on January 30, 2019. (ECF No. 3).

3. Over five months later, at the request of Petitioner’s former defense counsel, this Court

granted Petitioner a final thirty-day extension of time within which to refile his motion in

accordance with the administrative termination order. (ECF No. 5). Petitioner thereafter filed his

amended motion to vacate sentence on or about July 19, 2019. (ECF No. 6 at 13).

4. Following the filing of the amended complaint, this Court screened Petitioner’s

complaint pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings and entered an

order directing Petitioner to show cause why his petition should not be dismissed as time barred.

(ECF No. 7). This Court explained as follows:

As Petitioner appeared to acknowledge in his petition, his § 2255 is

almost certainly time barred. Motions to vacate sentence are subject

to a one year statute of limitations which runs from the latest of

several possible dates: the date on which the petitioner’s conviction

becomes final, the date on which an impediment to making his

motion is removed, the date on which the Supreme Court first

recognizes the claims raised where a claim is based on a newly

recognized right made retroactive to cases on collateral review, or

the date on which the facts supporting the claim first could have

been discovered through due diligence. 28 U.S.C. § 2255(f)(1)-(4).

Because Petitioner’s claims are not based on a newly recognized

right, nor does Petitioner present any evidence that the facts

supporting his claim were not discoverable or that any impediment

prevented him from raising his claims, Petitioner’s statute of

limitation runs from the date on which his conviction became final.

Id. Where a petitioner files a direct appeal, but does not file a

petition for certiorari, that petitioner’s conviction becomes final

ninety days after the order of the Court of Appeals dismissing his

appeal, when the time for the filing of a petition for certiorari has

run. See Kapral v. United States, 166 F. 3d 565, 577 (3d Cir. 1999).

In his underlying criminal matter, Petitioner pled guilty in

February 2010 and was ultimately sentenced on April 7, 2011. (ECF

No. 1 at 1; Docket No. 07-1032 at ECF Nos. 58, 78). Petitioner

appealed, and the Third Circuit affirmed via an order granting the

Government’s motion for a summary affirmance on June 20, 2012.

(Docket No. 07-1032 at ECF No. 95). Because Petitioner did not

file a petition for certiorari, his conviction became final ninety days

later on September 18, 2012. His one-year limitations period began

to run on that date, and, absent some basis for equitable tolling of

the limitations period, expired in September 2013, more than five

years before Petitioner filed his initial motion in this matter.1

Although the § 2255 limitations period is subject to equitable

tolling where the facts of the matter so warrant, such tolling “is a

remedy which should be invoked ‘only sparingly.’” United States

v. Bass, 268 F. App’x 196, 199 (3d Cir. 2008) (quoting United States

v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Tolling therefore

only applies where a petitioner shows “(1) that he faced

‘extraordinary circumstances that stood in the way of timely filing,’

and (2) that he exercised reasonable diligence.” Johnson, 590 F.

App’x at 179 (quoting Pabon v. Mahanoy, 654 F.3d 385, 399 (3d

Cir. 2011)). Excusable neglect is insufficient to establish a basis for

equitable tolling. United States v. Thomas, 713 F.3d 165, 174 (3d

Cir. 2013).

1 In his amended petition, Petitioner references having filed another § 2255 motion, but claims it

was filed in his criminal docket. No § 2255 motion was filed on that docket, and Petitioner asserts

no decision was ever issued, so it appears that he is merely referencing the initial motion he filed

in this matter which was administratively terminated in January 2019.

In his motion and amended motion, Petitioner fails to set

forth any basis for equitable tolling, and this Court perceives no such

basis from the facts presented. Thus, Petitioner’s motion to vacate

sentence appears to be well and truly time barred, and Petitioner will

be required within forty-five days to show cause why his petition

should not be dismissed. Should Petitioner fail to meet this deadline

or fail to show cause, his petition shall be dismissed with prejudice

as time barred.

Finally, the Court notes that, without further explanation,

Petitioner asserts in his motion that he should be permitted to evade

the time bar because he believes he is raising claims for structural

errors and “structural error holds no limitation.” Petitioner provides

no caselaw in support of such an assertion, and this Court is aware

of none. Indeed, what little caselaw exists suggests that structural

errors are not immune to the statute of limitations. See, e.g., Dedona

v. United States, No. 08-2046, 2009 WL 2778386, at *4-5 (D.N.J.

Aug. 31, 2009) (rejecting argument that structural errors could

proceed regardless of timeliness and finding motion alleging

structural errors time barred); see also Montes v. Nash, 179 F. App’x

824, 825 (3d Cir. 2006) (inability to raise a structural error claim

which is procedurally barred under § 2255 insufficient to permit a

petitioner to evade the second or successive motion bar). That

Petitioner believes the errors he alleges are structural in nature is

immaterial – that distinction has no bearing on whether Petitioner

had ample opportunity to file a timely motion to vacate sentence –

which it fully appears he had – and whether his current motion

should be dismissed as time barred. Petitioner’s motion appears to

be well and truly time barred by more than five years, and absent a

sufficient showing of cause, will be dismissed.

(ECF No. 7 at 1-4).

5. On August 28, 2019, Petitioner filed a response to the order to show cause. (ECF No.

8). In his response, Petitioner argues that, because his claims are constitutional in nature, the

burden should be placed on the Government to prove they were harmless beyond a reasonable

doubt regardless of any time bar issues, relying on Chapman v. California, 386 U.S. 18 (1967).

Petitioner also argues that § 2255 motions should not be subject to a time bar, relying on pre-

AEDPA cases. Finally, Petitioner suggests, if not argues, that the Court’s screening order is

indicative of bias and that it should be the Government, and not the Court, who presents any time

bar issue.

6. Turning first to Petitioner’s contention that the Court’s screening is somehow indicative

of bias or the Court acting on the Government’s behalf, Petitioner is mistaken. Although Petitioner

argues that the Government, and not a judge, should identify the deficiencies in his motion to

vacate, he completely ignores the fact that this Court is required by Rule 4 of the Rules Governing

Section 2255 Proceedings to screen all motions to vacate sentence. Indeed, the Rule specifically

states that the “judge who receives the motion must promptly examine it [and, i]f it plainly appears

. . . that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4(b)

(emphasis added). Pursuant to this Rule, this Court must “dismiss summarily any habeas petition

that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994). The

time bar issue this Court raised in its screening order was patently obvious from the face of

Petitioner’s motion and the records of his underlying criminal proceedings. Thus, under Rule 4(b),

this Court was required to screen Petitioner’s motion to vacate sentence and dismiss it as the time

bar issue was apparent from the face of Petitioner’s motion. That screening, and the ultimate

dismissal of his motion to vacate as time barred in no way evinces prejudice or bias, nor the

appearance of such, and any request by Petitioner that this Court recuse or otherwise decline to

dismiss his clearly time barred motion to vacate sentence is denied. See Selkridge v. United of

Omaha Life Ins. Co., 360 F.3d 155, 167-68 (3d Cir., 2004) (recusal only required where a judge’s

impartiality may reasonably questioned, and this generally only occurs where the judge expresses

beliefs or opinions involving an extrajudicial factor or the judge acts in a manner displaying “a

deep-seated favoritism or antagonism that would make fair judgment impossible”). Petitioner’s

unsupported and base allegation of bias based on this Court taking actions required of it is therefore

no basis for either recusal or for permitting Petitioner to evade the time bar in this case.

7. Turning to Petitioner’s arguments, this Court first notes that Chapman v. California,

which Petitioner relies upon to argue that the Government should be required to prove beyond a

reasonable doubt that his constitutional claims were harmless is generally inapplicable to habeas

review. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 637- 638 (1993). In a habeas petition, non-

structural errors will not warrant habeas relief unless the error “had substantial and injurious effect

or influence in determining the jury’s verdict.” Id. Thus, unless a petitioner can show a substantial

and injurious effect, his non-structural error claims will not merit habeas relief, regardless of the

Government’s arguments. Id. Petitioner’s assertion that the Government must prove beyond a

reasonable doubt the harmlessness of his claims thus completely overlooks Brecht and the fact that

Petitioner is subject to a final judgment and is no longer entitled to the presumption of his

innocence. Even were this not the case, however, the issue is utterly immaterial – if Petitioner’s

motion to vacate sentence is time barred, even his potentially meritorious claims are subject to

dismissal, and thus it matter not which harmlessness standard applies, especially in light of the fact

that Petitioner claims structural errors, to which harmlessness standards are inapplicable. As this

Court explained above, however, there is no case law which supports Petitioner’s claim that his

structural error claims are not subject to the § 2255(f) time bar, and Petitioner’s motion must

therefore be dismissed as time barred if Petitioner cannot show some basis for tolling.

8. In his final argument, Petitioner asserts that he should be permitted to proceed because

there is no time bar which would block his claims. Petitioner reaches this conclusion, however,

by relying on cases decided before Congress adopted the one year limitations period in 1996. (See

ECF No. 8 at 3, citing Nahodi v. United States, 36 F.3d 323, 328 (3d Cir. 1994); United States v.

Cariola, 323 F.3d 180, 183 (3d Cir. 1963)). Petitioner’s reliance on these cases is utterly misplaced

– once Congress adopted AEDPA in 1996 and imposed the one year time limitation now found in

28 U.S.C. § 2255(f), the previous rules permitting later filing no longer applied. See Kapral, 166

F.3d at 567. As Petitioner’s habeas petition was filed more than twenty years after the application

of § 2255(f), his motion is subject to the one year statute of limitations. Because Petitioner’s

motion is clearly time barred under that statute, and as Petitioner has utterly failed to provide any

basis for tolling the limitations period or otherwise evading application of the time bar, his motion

is dismissed with prejudice.

9. Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal

from the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). “When the district court denies a habeas [matter]

on procedural grounds without reaching the prisoner's underlying constitutional claim, a

[Certificate of Appealability] should issue when the prisoner shows, at least, that jurists of reason

would find it debatable whether the [Petitioner’s § 2255 motion] 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). As jurists

of reason would not debate that Petitioner’s motion to vacate is clearly time barred, Petitioner has

failed to make a substantial showing of the denial of a constitutional right, and he is therefore

denied a certificate of appealability.

10. In conclusion, Petitioner’s amended motion to vacate sentence (ECF No. 6) is

DISMISSED WITH PREJUDICE as time barred and Petitioner is DENIED a certificate of

appealability. An appropriate order follows.

s/ Susan D. Wigenton

Hon. Susan D. Wigenton,

United States District Judge