Opinion — Jeremy D. Valerio, Civil Action No. 16-3674(RMB) (Dkt. 10, D.N.J.)
Summary
In this opinion dated September 9, 2019, U.S. District Judge Renée Marie Bumb of the District of New Jersey dismissed as time-barred Jeremy D. Valerio's motion under 28 U.S.C. § 2255 to vacate a federal sentence, in Civil Action No. 16-3674(RMB). Valerio pled guilty on June 26, 2003 to conspiracy to discharge an explosive bomb during a drug trafficking crime and discharging an explosive bomb during a drug trafficking crime, and was sentenced as a career offender to 271 months' imprisonment. The motion argued that Johnson v. United States, decided June 26, 2015, meant prior New Jersey burglary and assault convictions no longer counted as crimes of violence. Following the Third Circuit in United States v. Green, the court ruled that Johnson did not recognize a right to a vagueness challenge to the mandatory Guidelines. No certificate of appealability was issued.
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JEREMY D. VALERIO, HONORABLE RENÉE MARIE BUMB
Petitioner,
Civil Action
v. No. 16-3674(RMB)
UNITED STATES OF AMERICA,
OPINION
Respondent.
I. INTRODUCTION
Jeremy D. Valerio (“Petitioner”) moves to vacate, correct, or
set aside his federal sentence pursuant to 28 U.S.C. § 2255. (ECF
Nos. 1, 3.) The United States of America (“Respondent”) opposes
the motion. (ECF No. 7.) Petitioner timely filed a reply brief.
(ECF No. 8). For the reasons discussed herein, the Court will
dismiss Petitioner’s motion as time-barred. No certificate of
appealability shall issue.
II. BACKGROUND
On June 26, 2003, Petitioner pled guilty to conspiracy to
discharge an explosive bomb during a drug trafficking crime in
violation of 18 U.S.C. § 924(o) and discharging an explosive bomb
during a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(iii). (ECF No. 3 at 2.) At sentencing, the Court
determined that Petitioner had two prior New Jersey convictions
that constituted “crimes of violence.” (Id.) One of those
convictions came on June 8, 1993, for Third Degree Burglary under
N.J. STAT. ANN. 2C:18-2 and Aggravated Assault—Simple Assault Plus
under N.J. STAT. ANN. 2C:12-1b(5). (Id.) The other was a May 6, 1997
conviction for Third Degree Burglary, also under N.J. STAT. ANN.
2C:18-2. (Id.) The Court also determined that the crime for which
Petitioner was presently being sentenced constituted a “crime of
violence.” (Id.) Therefore, the Court found that Petitioner was a
career offender under the then-mandatory Sentencing Guidelines.
(Id. at 2-3.) Resultingly, Petitioner’s Guideline range was 271 to
308 months’ imprisonment. (Id. at 3.) If not for the career
offender finding, Petitioner’s Guidelines range would have been
171 to 183 months’ imprisonment. (Id.) The Court sentenced
Petitioner to 271 months’ imprisonment. (Id.)
Petitioner did not file a direct appeal. (ECF No. 7 at 2.) He
filed his first § 2255 motion on October 18, 2004, alleging that
he received ineffective assistance of counsel during his plea and
sentencing proceedings and that his sentence violated the Sixth
Amendment under Blakely v. Washington, 542 U.S. 296 (2004). (Id.)
The Court denied that motion on November 9, 2005. (Id. at 3.)
On June 26, 2015, the Supreme Court decided Johnson v. United
States. 135 S. Ct. 2551 (2015). Johnson, which will be discussed
in more detail below, held that the residual clause of the Armed
Career Criminal Act (“ACCA”) was unconstitutionally vague. Id. at
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2563. In 2016, the Supreme Court held that Johnson was
retroactively applicable on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264 (2016).
On May 5, 2016, Petitioner filed an application for leave to
file a second or successive § 2255 motion in the Third Circuit
Court of Appeals. (ECF No. 1 at 5.) Initially, the Third Circuit
stayed Petitioner’s case pending further order of the Court. (Id.,
Attach. 2.) On November 2, 2017, the Third Circuit granted
Petitioner permission to file a second or successive § 2255 motion.
(ECF No. 3 at 1.) While the application for leave was pending,
Petitioner filed the present motion on June 22, 2016. (Id.)
Petitioner contends that the motion was timely because it was filed
within one year of Johnson, pursuant to 28 U.S.C. § 2255(f)(3).
(ECF No. 1 at 26.) For the reasons set out below, the Court rejects
Petitioner’s argument and dismisses the present motion as time-
barred.
III. STANDARD OF REVIEW
Section 2255 permits a federal prisoner to attack the validity
of their conviction or sentence “upon the ground that [it] 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 (2018). The Antiterrorism and Effective Death
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Penalty Act of 1996 (“AEDPA”) imposes a one-year limitation within
which a § 2255 motion must be filed. See id.
The limitation period shall run 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.
Id. § 2255(f).
A district court must 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 here as the record conclusively shows Petitioner is not
entitled to relief.
IV. ANALYSIS
Petitioner argues that, because of Johnson, his June 3, 1993
convictions for burglary and aggravated assault and his May 6,
1997 conviction for burglary no longer qualify as “crimes of
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violence,” rendering the career offender provision inapplicable.
(ECF No. 1 at 10-18.) Petitioner’s judgment of conviction became
final in 2003, but the present § 2255 motion was filed within one
year of Johnson, see (Docket (Motion filed June 22, 2016));
Johnson, 135 S. Ct. at 2551 (decided June 26, 2015), so he relies
on § 2255(f)(3) in this motion, (ECF No. 1 at 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 Armed Career Criminal Act (“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).
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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 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.
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V. 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
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.
VI. 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.
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September 9, 2019 s/Renée Marie Bumb
Date RENÉE MARIE BUMB
United States District Judge
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