# LIVINGSTON v. United States

> District Court, D. New Jersey · October 25, 2019

URL: https://www.frixlaw.com/law-library/cases/10266935

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** October 25, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

ANTHONY L. LIVINGSTON, HONORABLE RENÉE MARIE BUMB

Petitioner,
Civil Action
v. No. 16-3591 (RMB)

UNITED STATES OF AMERICA,
OPINION
Respondent.

APPEARANCES:

JOHN B. BRENNAN, ESQ.
LAW OFFICES OF JOHN B. BRENNAN
10000 Lincoln Drive East, Suite 201
Marlton, New Jersey 08053
Attorney for Petitioner

DIANA V. CARRIG, ESQ.
GLENN J. MORAMARCO, ESQ.
UNITED STATES ATTORNEY’S OFFICE
401 Market Street, 4th Floor
Camden, New Jersey 08101
Attorneys for Respondent

Bumb, District Judge:
INTRODUCTION
Anthony L. Livingston (“Petitioner”) moves to vacate,
correct, or set aside his federal sentence pursuant to 28 U.S.C.
§ 2255. (Petition [Docket Item 1]; United States v. Livingston,
No. 01-cr-0465-1 (D.N.J. February 1, 2002).) Respondent United
States of America (“Respondent”) opposes the motion. [Docket Item
7.] Petitioner filed a traverse in response to Respondent’s brief.
[Docket Item 9.] For the reasons stated herein, the Court will
dismiss the motion as time-barred, and no certificate of
appealability will issue.
BACKGROUND
On July 13, 2001, Petitioner appeared before the late

Honorable Jerome B. Simandle, D.N.J., with counsel and pled guilty
to a criminal information containing eight counts of bank robbery,
in violation of 18 U.S.C. § 2113(a), (Information [Docket Item 19]
and Plea Agreement [Docket Item 23] in Crim. No. 01-0465-1),
concerning a series of robberies which took place in late 2000 and
early 2001.
The parties next appeared before Judge Simandle for
sentencing on February 1, 2002. At that time, the Court granted a
two-level upward departure, raising Petitioner’s total offense
level to level 31, and imposed a sentence of 220 months on each of
the eight counts, to be served concurrently. United States v.
Livingston, No. 01-cr-0465-1 (D.N.J. February 1, 2002). Petitioner

appealed his sentence, in particular the two-level upward
departure, to the Court of Appeals for the Third Circuit. United
States v. Livingston, No. 02-1454 (3d Cir. filed February 8, 2002).
The Court of Appeals affirmed the sentence imposed by Judge
Simandle on April 28, 2003. 63 F. App’x 617 (3d Cir. 2003).
Petitioner filed three separate motions to correct, vacate,
or set aside his sentence on February 7, 2002 (Civ. No. 02-605),
on August 8, 2003 (Civ. No. 03-3746), and on September 9, 2003
(Civ. No. 03-4226), which were all consolidated under the earliest
filed case: Civ. No. 02-605. Petitioner was further advised of his
Miller rights on September 26, 2003. (Order [Docket Item 4] in

Civ. No. 02-605.) The Court denied Petitioner’s three consolidated
petitions on February 26, 2004. (Order and Opinion [Docket Items
7 and 8] in Civ. No. 02-605.) Petitioner then sought
reconsideration of that decision, which Judge Simandle denied on
March 30, 2004. (Order [Docket Item 10] in Civ. No. 02-605.)
On August 9, 2004, the Third Circuit denied Petitioner’s
request to file a new petition under § 2255. (Order [Docket Item
12] in Civ. No. 02-605.) Nevertheless, Petitioner filed a fourth
petition under § 2255 on September 16, 2004. (Motion [Docket Item
40] in Crim. No. 01-465; see also Order [Docket Item 13] in Civ.
No. 02-605.) Judge Simandle dismissed this fourth petition on April
26, 2005, due to Petitioner’s failure to receive permission to

file such from the Third Circuit. (Order [Docket Item 13] in Civ.
No. 02-605.)
Petitioner filed the instant motion to correct, vacate, or
set aside his sentence on June 20, 2016. [Docket Item 1.]
Respondent answered on January 16, 2018. [Docket Item 7.]
Petitioner filed a traverse on March 9, 2018. [Docket Item 9.]
III. ANALYSIS
In his motion, Petitioner argues his sentence violates the
Constitution because the Supreme Court’s ruling in Johnson v.
United States, 135 S. Ct. 2551 (2015), found the residual clause
in the Armed Career Criminal Act (“ACCA”) to be constitutionally
void for vagueness. [Docket Item 1.] Petitioner further argues

that his sentence was impacted by his designation as a “career
offender” under the mandatory Sentencing Guidelines, which
contained a clause identical to that found unconstitutional in
Johnson. [Id.]
Respondent argues the motion should be denied because the
motion is time-barred under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), because, alternatively, the motion
is premature as the Supreme Court has not extended its reasoning
in Johnson to any other context, because Petitioner was not granted
leave by the Third Circuit to file a second or successive petition
under § 2255 with regard to claims that he was improperly sentenced
as a career offender under the enumerated offenses, but only with

regards to a Johnson claim, and because the motion is procedurally
defaulted. [Docket Item 7.] Respondent’s brief further argues that
Petitioner’s present motion only highlights harmless error and
that Petitioner has not established that Johnson’s reasoning
applies in a mandatory Sentencing Guidelines case. [Id.]
A district court is required to conduct an evidentiary hearing
“where a petition allege[s] any facts warranting relief under
§ 2255 that are not clearly resolved by the record . . . .” United
States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (internal
quotation marks omitted). The Court finds that an evidentiary
hearing is not warranted as the record conclusively shows
Petitioner is not entitled to relief.

A. Statute of Limitations
AEDPA imposes a one-year statute of limitations for filing
motions pursuant to § 2255. Under § 2255(f), the limitation period
runs from the latest of:
(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 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). Respondent argues the motion is untimely. The
Court agrees, and the motion must therefore be dismissed.
“[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.” Kapral v. United States, 166 F.3d 565,
577 (3d Cir. 1999) (internal quotation marks omitted); see also

Greene v. Palakovich, 606 F.3d 85, 91 (3d Cir. 2010), aff’d sub
nom Greene v. Fisher, 132 S. Ct. 38 (2011). In this case,
Petitioner did not file a petition for certiorari, and his time to
do so expired on July 28, 2003, 90 days after the Third Circuit
denied his appeal on April 28, 2003. Petitioner had until July 28
12, 2004, to file a timely § 2255 motion. Petitioner did not file
the present motion until June 20, 2016, nearly twelve years late.
As a result, his motion is untimely and must be dismissed.1
Petitioner argues that, because of Johnson, his instant
federal bank robbery charge and his December 6, 1990 conviction
for burglary no longer qualify as “crimes of violence,” rendering
the career offender provision inapplicable. ([Docket Item 1], 2,

10-21.) Petitioner’s judgment of conviction became final in 2003,
but the present § 2255 motion was filed within one year of Johnson,
(see [Docket Item 1], filed June 20, 2016); Johnson, 135 S. Ct. at
2551 (decided June 26, 2015)), so he relies on § 2255(f)(3) in

1 AEDPA’s statute of limitations is subject to equitable tolling
in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010).
Petitioner filed a traverse objecting to Respondent’s timeliness
argument, [Docket Item 9], however neither the motion nor the
traverse sets forth any facts that would entitle Petitioner to
equitable tolling. Therefore, the Court finds that no basis for
equitable tolling exists.
this motion. ([Docket Item 1], 2.) Determining that Petitioner’s
motion should be denied as time-barred requires an analysis of
Johnson and subsequent cases.

In Johnson, the Supreme Court ruled that the residual clause
of the ACCA was unconstitutionally vague. Johnson, 135 S. Ct. at
2563. The next year, the Supreme Court determined that Johnson was
retroactively applicable on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264 (2016). The residual clause of the
ACCA is identical to the residual clause of the career offender
provision of the Sentencing Guidelines. See Beckles v. United
States, 137 S. Ct. 886, 890 (2017). Nevertheless, the Supreme Court
in Beckles held that Johnson did not create a new right as to the
residual clause of the Sentencing Guidelines in their advisory
form (i.e., post-United States v. Booker, 543 U.S. 220 (2005)).
Beckles, 137 S. Ct. at 890. Beckles did not address Johnson’s

effect on a void-for-vagueness challenge to the Sentencing
Guidelines in their mandatory (pre-Booker) form. See id. at 903
n.4 (Sotomayor, J., concurring).
The Third Circuit addressed that issue in United States v.
Green, 898 F.3d 315 (2018). In that case, the petitioner made the
same argument as Petitioner here as to the timeliness of his § 2255
motion. See Green, 898 F.3d at 317-18. The Court noted that, “in
light of Beckles, Johnson’s holding as to the residual clause in
the ACCA created a right only as to the ACCA, and not a broader
right that applied to all similarly worded residual clauses, such
as that found in the advisory Sentencing Guidelines.” United States
v. Green, 898 F.3d 315, 321 (3d Cir. 2018). Because Beckles “says

nothing about a . . . right to not be sentenced under Sentencing
Guidelines, whether advisory or mandatory,” the Green Court held
that “Johnson did not recognize a right to bring a vagueness
challenge to the mandatory Sentencing Guidelines.” Id. Since
Beckles specifically left that question open, the Supreme Court
“certainly has not ‘recognized’ the right to bring a successful
vagueness challenge to the mandatory Guidelines’ residual clause.”
Id. Therefore, the petitioner’s motion in Green was untimely. Id.
Here, Petitioner makes the same argument as the petitioner in
Green. Since that argument has now been squarely addressed and
rejected by the Third Circuit in Green, Petitioner “cannot rely on
28 U.S.C. § 2255(f)(3) to restart his applicable statute of

limitations period.” Green, 898 F.3d at 321. Therefore,
Petitioner’s motion is dismissed as time-barred.2
B. Certificate of Appealability
AEDPA provides that an appeal may not be taken to the court
of appeals from a final order in a § 2255 proceeding unless a judge
issues a certificate of appealability on the ground that “the

2 As the Court finds that Petitioner’s present motion is time-
barred, the Court need not and shall not address the remainder of
the arguments asserted by either Petitioner or Respondent.
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court
held in Slack v. McDaniel 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 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.” 529 U.S. 473, 484 (2000) (emphasis added).
This Court denies a certificate of appealability because jurists
of reason would not find it debatable that dismissal of the
petition as untimely is correct.
IV. CONCLUSION
For the reasons stated above, Petitioner’s Motion to Vacate,
Correct, or Set Aside his sentence is dismissed as untimely under

28 U.S.C. § 2255(f). No certificate of appealability shall issue.
An accompanying Order will be entered.

October 16, 2019 s/ Renée Marie Bumb
Date RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266935. Public record. Not legal advice.