The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AL’RASHON BROWN, Civil Action No. 20-8965 (SDW)
Petitioner,
v. MEMORANDUM OPINION
UNITED STATES OF AMERICA,
Respondent.
IT APPEARING THAT:
1. On or about June 30, 2020, Petitioner Al’Rashon Brown filed his initial § 2255 motion
in this manner. (ECF No. 1).
2. On July 17, 2020, this Court entered an order administratively terminating this matter
as Petitioner had failed to use the form required by the local rules. (ECF No. 2). As part of that
same order, this Court directed Petitioner to show cause why his motion to vacate sentence should
not be dismissed as time barred. (Id. at 2-4).
3. As this Court explained:
Petitioner’s current motion to vacate sentence [appears to be] time
barred. Motions to vacate sentence brought pursuant to 28 U.S.C. §
2255 are subject to a one year statute of limitations which in most
cases 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). “In most cases, the operative date from which the
limitation period is measured will be . . . the date on which the
judgment of conviction becomes final.” Dodd v. United States, 545
U.S. 353, 357 (2005) (internal quotations omitted). Where a
petitioner fails to file a direct appeal, his conviction is considered
final, when the time for the filing of an appeal has run. See Kapral
v. United States, 166 F. 3d 565, 577 (3d Cir. 1999).
Here, Petitioner’s conviction became final fourteen days
after his judgment of conviction was entered on June 18, 2018, or
on July 2, 2018, when he failed to file a direct appeal. Kapral, 166
F.3d at 577. If Petitioner’s one-year limitations runs from that date,
then Petitioner’s current motion is time barred by nearly a year as
his limitations period expired on July 2, 2019. The only alternative
starting point for the statute of limitations Petitioner appears to
assert is the date on which Rehaif was decided. Rehaif, however,
would only provide an alternative starting date if Rehaif was the first
case to recognize the “right asserted” by Petitioner and was made
“retroactively applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3). As the Third Circuit has recently explained, Rehaif
neither created a new “right” by announcing a new rule of
constitutional law, nor was it made retroactive to collateral review
cases. See In re Sampson, 954 F.3d 159, 161, 161 n. 3 (2020); see
also United States v. McArthur, No. 16-53, 2020 WL 3064293, at
*2 (W.D. Pa. June 9, 2020). It thus does not appear that Rehaif
provides an alternative start date. Even if it did, however, Rehaif
was issued on June 21, 2019, and Petitioner did not sign, let alone
file, his current motion until June 30, 2020, after one year had passed
from the issuance of Rehaif. Petitioner’s motion thus appears to be
time barred even if Rehaif did provide an alternative starting date.
(ECF No. 2 at 2-4).
4. On or about January 11, 2021, Petitioner final filed an amended motion to vacate
sentence on the required form. (ECF No. 7). In his amended motion, Petitioner presents only two
arguments for why his motion should not be time barred – his belief that Rehaif should provide a
later starting date for the one-year limitations period, and an argument in which he asserts he
should receive equitable tolling for the period between March and June 2020 due to COVID-19
related prison lock-downs. (Document 1 attached to ECF No. 7 at 16).
5. As Petitioner has now filed his amended motion to vacate sentence on the required form
and has responded to this Court’s order to show cause (ECF No. 2), this Court is required to screen
his motion and dismiss the motion if it “appears legally insufficient on its face.” McFarland v.
Scott, 512 U.S. 849, 856 (1994); see also Rule 4 of the Rules Governing Section 2255 Proceedings.
6. Even putting aside the question of whether Rehaif issued a retroactive new rule of law
sufficient to alter the starting date for the § 2255(f) limitations period,1 Petitioner’s motion to
vacate sentence remains time barred. As noted above, Petitioner did not file his motion to vacate
sentence within one year of Rehaif. Instead, he filed his initial motion at least nine days later.
Petitioner’s motion is therefore time barred unless he can show an entitlement to equitable tolling
even assuming Rehaif provides him a later starting date for his limitations period.
7. Equitable 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).
8. Here, Petitioner argues he should be provided equitable tolling because his prison was
locked down for three months between mid-March or April 20202 and the filing of his motion in
late June, and Petitioner believes that this should provide him equitable tolling. According to
1 The Third Circuit has yet to speak on this issue directly, as opposed to by implication as in
Sampson, and those district courts to speak on the issue are divided. Compare United States v.
Battle, No. 16-17, 2020 WL 4925678, at *4-5 (W.D. Pa. Aug. 21, 2020), with United States v.
Roberts, No. 15-387, 2020 WL 6700918, at *2 n. 3 (E.D. Pa. Nov. 13, 2020).
2 The Court notes that in his initial filing, Petitioner stated that the lockdown did not start until
mid-April (See ECF No. 1 at 4), while he now contends that it began on March 12, 2020.
(Document 1 attached to ECF No. 7 at 16).
Petitioner, however, he began working on his motion “sometime in November 2019,” but did not
finish his untimely original motion until parts of the facility lock-down were lifted permitting him
to return to the law library in June 2020. (Document 1 attached to ECF No. 7 at 16). Petitioner
does not detail what efforts he made in November 2019, or what further efforts he made between
November 2019 and the beginning of the lock-down in mid-March, now what steps he attempted
to take between March and June which were blocked by prison lock-downs.
9. In Thomas, the Third Circuit rejected an argument for equitable tolling raised by a
petitioner who had full access to legal materials, presumably including a law library, for nine
months out of his one year limitations period, and who had not explained why he needed further
legal materials during the remaining three months to timely complete his motion to vacate sentence
as the petitioner could not show that he had been reasonably diligent in pursuing his rights under
those circumstances. Even assuming that COVID-19 lockdowns amount to an “extraordinary
circumstance,” it is neither clear that the lock down in question stood in Petitioner’s way, nor that
Petitioner diligently pursued his rights. Like the Petitioner in Thomas, Petitioner had full access
to the law library and legal materials for approximately nine months between the filing of the
Rehaif decision in June 2019 and the start of the COVID-19 lockdown in March or April 2020.
Likewise, by his own admission Petitioner first started work on his motion in November 2019.
Petitioner thus allowed five months of his one-year limitations period to expire before he even
began work on his motion. Likewise, because Petitioner began work in November 2019, and his
motion concerns only one case – Rehaif – it follows that if Petitioner began work in November
2019, he was aware of Rehaif by that time. If Petitioner was aware of the legal ramifications of
Rehaif, it is utterly unclear why he needed a law library or other legal materials to complete his
motion to vacate sentence, and Petitioner has not explained why he needed the law library or other
legal materials to complete his motion to vacate sentence after March 2019. Thus, even if the
lockdown amounts to an extraordinary circumstance, it is not clear that the lockdown, rather than
Petitioner’s neglect of his motion to vacate sentence, stood in Petitioner’s way, especially
considering Petitioner was apparently able to finish his motion to vacate sentence in a matter of
only seven days – the time between the lifting of law library restrictions on June 22 and the
completion of his motion on June 29, 2020. (See Document 1 attached to ECF No. 7 at 16). Given
these facts, the lack of any allegations of what steps, if any, Petitioner took toward completing his
motion to vacate sentence between November 2019 and March 2020, and the lack of any
explanation as to why Petitioner required access to legal materials to complete his motion after
March 2020, Petitioner has at the very least failed to show reasonable diligence rather than
excusable neglect. Petitioner is therefore not entitled to equitable tolling, and his motion to vacate
sentence must be dismissed as a result.
10. . 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 or that
Petitioner failed to show sufficient diligence to warrant equitable tolling, Petitioner has failed to
make a substantial showing of the denial of a constitutional right, and he is therefore denied a
certificate of appealability.
11. In conclusion, Petitioner’s motion to vacate sentence (Document 1 attached to ECF
No. 7) is DISMISSED as time barred, and Petitioner is DENIED a certificate of appealability. An
appropriate order follows.
Dated: January 13, 2021 s/Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge