Pandemic Darlings The pandemic economy, in original documents
Home Source documents Opinion — Jeremy D. Valerio, Civil Action No. 16-3674(RMB) (Dkt. 10, D.N.J.)

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.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

                   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

                                      2
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

                                        3
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

                                       4
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).

                                   5
     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.



                                     6
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.




                                   7
September 9, 2019       s/Renée Marie Bumb
Date                    RENÉE MARIE BUMB
                        United States District Judge




                    8


File and source

File
gov.uscourts.njd.334451.10.0.pdf
Size
35,996 bytes
SHA-256
7c201565ad78050ceb55e5d4dc3ef5c294e22c4f6d5213c78954a29eae811799
Our copy
gov.uscourts.njd.334451.10.0.pdf
Original
archive.org
Back to top