LYNN v. UNITED STATES OF AMERICA, No. 3:2013cv05730 - Document 9 (D.N.J. 2015)

Court Description: MEMORANDUM OPINION filed. Signed by Judge Anne E. Thompson on 6/22/2015. (kas, )

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LYNN v. UNITED STATES OF AMERICA Doc. 9 RECEIVED IN THE·UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JUN 2 3 2015 AT 8:30 WILLIAM T. WALSH CLERK I I M : EFRAIN LYNN, Civil Action No. 13-5730 (AET) Petitioner, v. MEMORANDUM OPINION UNITED STATES OF AMERICA, Respondent. THOMPSON, District Judge: ! Petitioner is proceeding pro se with a Motion to Vacate, qorrect, or Set Aside his sentence pursuant to 28 U.S.C. § 2255. Entry 1). I 1. Petitioner was tried before a jury and convicted of qonspiracy to commit bank robbery, 18 U.S.C. § 1951; two counts of bank robbery, 18 U.S.C. § 2113(a); and two counts of possession and I discharge of a firearm during a crime of violence, 18 U.S.C. § ! --- I Q24 (c) (1) (A). (Docket Entry 1 <[ 4). United States v. Lynn, No. 07- 1 Q 54 - 0 3 (AE T ) ( D . N . J . 2 0 0 9 ) . 4 2. On May 28, 2009, this Court sentenced Petitioner to 481 I Jonths imprisonment followed by five years of supervised release. I 3. Petitioner timely appealed. The Court of Appeals for the Third Circuit affirmed the convictions and sentence. United States I I i· Herrera-Genao, 4. 419 F. App'x 288, 291 (3d Cir. 2011). Petitioner did not file a petition for writ of certiorari. (Docket Entry 1 <[ 9(g)). 5. 2013. Petitioner filed the instant motion on September 17, (Docket Entry 1 at 13). 6. On May 20, 2014, this Court advised Petitioner of his rjights under United States v. Miller, 197 F. 3d 644 (3d Cir. 1999), I I I directed Petitioner to inform the Court within 45 days as to How he wanted to proceed. 7. (Docket Entry 2). On June 3, 2014, the Miller order was returned to the as undeliverable. (Docket Entry 4). ! I On August 28, 2014, this Court resent its Miller order to 8. I · · · Bet1t1oner at h' lS new 1 ocat1on. 9. On September 9, 2014, the Miller order was again returned to the Court as undeliverable. I ( Doc k et Entry 5) . 10. (Docket Entry 6). On December 19, 2014, the Miller order was sent to once again, along with an advisement that failure to I ,espond to the Court with Petitioner's current address may result in the motion being dismissed for failure to prosecute. (Docket I fin try 7) . 11. Petitioner submitted a change of address to the Court on i 5, 2015. (Docket Entry 8). 1. I 12. Petitioner has not notified the Court regarding its I Miller order, therefore pursuant to Miller, I 197 F.3d at 652 n.7, this Court's May 20, 2014 order, the petition is being ruled I Jpon as filed. 2 13. Petitioner's § 2255 motion is governed by the I and Effective Death Penalty Act of 1996 ("AEDPA"). I ! AEDPA imposes a one-year period of limitation on a federal prisoner I to challenge his conviction and sentence under § 2255. § 2255(f), the limitation period runs from the latest of: I · (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 recogniz-ed 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. u.s.c. 14. § 2255(f). In his petition, Petitioner argues his motion is timely it was filed within one year of the Supreme Court's I decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), which ! qeld that any fact that increases a mandatory minimum sentence must Je submitted to a jury and proven beyond a reasonable doubt. Entry 1 i 18) . ! 15. Although the Third Circuit recognized that Alleyne a:nnounced a new rule, it held Alleyne "is not retroactively I to cases on collateral review," like Petitioner's. 3 I I . 1135 d States v. Reyes, s. 755 F.3d 210, 212 (3d Cir.), cert. denied, Ct. 695 (2014); see also United States v. Winkelman, 746 134 (3d Cir. 2014). Petitioner therefore cannot rely on as the starting point of AEDPA's one-year limitations Jeriod under 28 U.S.C. § 2255(f) (3). 16. Additionally, Alleyne is a change of law, and is not a "Ifact" within the meaning of § 2255 (f) (4). See Whiteside v. United I 775 F.3d 180, 183-84 (4th Cir. 2014) (en bane); Lo v. 506 F.3d 572, 574-75 (7th Cir. 2007); E.J.R.E. v. United I I I 453 F.3d 1094, 1097-98 (8th Cir. 2006). Petitioner t)herefore cannot use the date of the Alleyne decision as the start d£ ,. the limitations period under§ 2255(f) (4). 17. Under§ 2255(f) (1), Petitioner's conviction became final dinety (90) days after the Third Circuit's decision, i.e., June 22, I which represents the time during which Petitioner could have ! a writ of certiorari. ! 18. dn June AEDPA's one-year statute of limitations therefore expired ?2, 2012, well before Petitioner filed the instant petition I also asserts claims of ineffective assistance of various sentencing errors, and violations of his Fifth Jmendment right to remain silent. (Docket Entry 1-1 at 8-11). These I I I 4 could have been and should have been raised within the onej Yiear limitations period. I 20. AEDPA's statute of limitations is subject to equitable I t\olling in appropriate cases, however. See Holland v. Florida, 560 9.s. I 631, 645 (2010). "Generally, a litigant seeking equitable I bears the burden of establishing two elements: (1) that he been pursuing his rights diligently; and (2) that some I extraordinary circumstance stood in his way." Pace v. DiGuglielmo, I u.s. 21. 408, 418 (2005). "The diligence required for equitable tolling purposes is rfeasonable diligence, not maximum, extreme, or exceptional i qiligence . . . . A determination of whether a petitioner has exercised reasonable diligence is made under a subjective test: it I must be considered in light of the particular circumstances of the qase." Ross v. Varano, 712 F.3d 784, 799 (3d Cir. 2013). 22. "The fact that a petitioner is proceeding pro se does not him from the 'reasonable diligence' inquiry and his lack 4f legal knowledge or legal training does not alone justify Jquitable tolling." Id. at 799-800. 23. In analyzing whether the circumstances faced by Betitioner were extraordinary, "'the proper inquiry is not how I I qnusual the circumstance alleged to warrant tolling is among the tiniverse of prisoners, ... but rather how severe an obstacle it is iI I for the prisoner endeavoring to comply with AEDPA's limitations 5 period.'" Id. at 802-03 (quoting Pabon v. Mahanoy, 400 (3d Cir. 2011)) 24. 654 F.3d 385, (emphasis in original). "In addition, for a petitioner to obtain relief there m!ust be a causal connection, or nexus, between the extraordinary I clircumstances he faced and the petitioner's failure to file a tlimely federal petition." Ibid. ! 25. In the interests of justice, Petitioner shall be ordered I Jo show cause why his Petition should not be dismissed as untimely uhder 28 U.S.C. § 2255(f). I 26. Any response by Petitioner shall state with specificity I aby facts that may entitle him to equitable tolling of the statute I limitations for each of his stated grounds for relief. District Judge 6
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