United States District Court, E.D. Pennsylvania
July 21, 2004.
SHARIF JAMAL GIVENS.
The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
Sharif Jamal Givens ("Givens") filed a habeas motion to vacate,
set aside or correct a sentence under 28 U.S.C. § 2255.
Magistrate Judge M. Faith Angell ("Angell"), to whom the matter
was referred, recommended the habeas motion be denied as
untimely. Petitioner submitted timely objections to Judge
Angell's Report and Recommendation ("MJRR").
Givens participated in an automobile theft and robbery near the
corner of Oxford and Columbia Avenues in Philadelphia. Givens and
co-defendant Al Turner: struck the victim with a gun; took $140
in currency from the victim; and stole his car keys and personal
identification. Givens and Turner then used the automobile to
travel to Bryn Mawr where they robbed a Dunkin Donuts
shop.*fn1 On April 4, 1994, Givens entered a plea of guilty to three
counts charging him with conspiracy (18 U.S.C. § 371), taking a
motor vehicle with intent to cause serious bodily harm (U.S.C. §
2119) and carrying a firearm during a violent crime
(18 U.S.C. § 924 (c)). At a Total Offense Level of 21 and a Criminal History
Category of IV, Givens's presumptive sentence was fifty-seven to
seventy-one months in addition to sixty months consecutive for
the firearm charge. The government's § 5K1.1 motion under the
United States Sentencing Guidelines ("USSG") was granted, and
Givens was sentenced to a period of forty-two months'
imprisonment on August 25, 1994.
The instant § 2255 motion is signed and dated December 10,
2002, was filed on January 14, 2003. Givens seeks relief on the
"(1) The conviction was obtained and sentence imposed
in violation of the Sixth Amendment Right to
Effective Assistance of Counsel at all critical
stages of the criminal proceedings; and
(2) The conviction was obtained and sentence imposed
in violation of the Fifth Amendment Right to Due
Process of Law and Equal Protection of the Laws."
See Petitioner's Memorandum of Law at pp 1-2.
Petitioner's objections have been considered de novo.
A. Objections to Finding of Fact #3:
Givens states that he is not aware of any document of record
stating that he commenced his federal sentece on November 22, 2001, and he is unaware there is a place called "FCI Lewisberg."
Records of the U.S. Bureau of Prisons confirm that Givens was
transferred to federal custody on November 22, 2001, and assigned
to the United States Penitentiary at Lewisburg (USP Lewisburg).
Givens is correct that there is no FCI Lewisberg.
B. The AEDPA's Statute of Limitations and Claims of Actual
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") imposes a one year statute of limitations for federal
defendants who attempt to attack a conviction and/or sentence
collaterally. The limitation period runs from the latest of the
date on which the conviction became final with three statutory
exceptions, none of which is applicable here. 28 U.S.C. § 2255.
The Court of Appeals has also recognized equitable tolling when
the rigid application of the limitations period would be unfair.
Generally, this will occur when the petitioner has in
some extraordinary way been prevented from asserting
his or her rights. The petitioner must show that he
or she exercised reasonable diligence in
investigating and bringing the claims. Mere excusable
neglect is not sufficient.
Jones v. Morton, 195 F.3d 153
, 159 (3d Cir. 1999) (citing
Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616
618 (3d Cir. 1998)). Further, equitable tolling may be
appropriate if (1) the defendant has actively misled the
plaintiff; (2) the plaintiff has "in some extraordinary way" been
prevented from asserting his rights; or (3) the plaintiff has timely asserted
his rights mistakenly in the wrong forum. Id. (citations
omitted). Equitable tolling may be appropriate where a motion for
appointment of counsel is pending or where the court has misled
the plaintiff into believing that he had done everything required
of him, but in the final analysis, equitable tolling applies only
in the rare situation where it is demanded by sound legal
principles as well as the interests of justice. See id.
These examples do not apply here. Givens claims his petition is
not untimely because he has alleged a "constitutional violation
that resulted in a fundamental defect amounting to a complete
miscarriage of justice." He claims his sentence was based on an
erroneous calculation of criminal history that is the functional
equivalent of a claim of actual innocence.
"To ensure that the fundamental miscarriage of justice
exception would remain `rare' and would only be applied in the
`extraordinary case,' while at the same time ensuring that the
exception would extend relief to those who were truly deserving,
[the Supreme Court] explicitly tied the miscarriage of justice
exception to the petitioner's innocence." Schlup v. Delo,
513 U.S. 298, 321 (1995). Givens, having entered a knowing and
voluntary plea of guilty to three counts of an indictment, does
not claim he was innocent of those charges. He claims that a
Gideon violation in calculating his criminal history is a
jurisdictional defect tantamount to a claim of actual innocence. Meritorious claims of actual innocence are extremely rare and
based on "factual innocence not mere legal insufficiency."
Bousley v. United States, 523 U.S. 614, 623 (1998).
Givens presents no evidence of his innocence or any reason to
believe his sentence is unjust. Merely alleging a constitutional
violation does not rise to the level of a legitimate claim of
actual innocence overcoming the one year statute of limitations.
C. AEDPA Statute of Limitations and Federal Custody.
Givens claims the AEDPA statute of limitations does not apply
because it did not begin to run until he was in federal custody,
and he was not transferred to federal custody within one year of
the date his conviction became final. He relies on the Supreme
Court decision in Heflin v. United States, 358 U.S. 415 (1959),
that a prisoner incarcerated under one sentence cannot challenge
a sentence he was not serving at the time. He claims Heflin and
the explicit language of § 2255 make clear that petitioner must
be in custody under a federal sentence before he is eligible for
relief under 28 U.S.C. § 2255.
Heflin was decided in 1959, long before the 1996 enactment of
the AEDPA in 1996, but even if it remains the law, the petition
is still untimely. It was filed more than one year after Givens
was transferred to federal custody so his petition is still
untimely under AEDPA. No statutory or equitable tolling
provisions apply; petitioner's motion to vacate, set aside or correct sentence will be denied without an evidentiary hearing.
For the foregoing reasons, Givens's Objections to the Report
and Recommendation will be overruled. An appropriate Order
AND NOW, this ____ day of July 2004, upon consideration of the
pleadings and record herein, and after review of the Report and
Recommendation of M. Faith Angell, United States Magistrate
Judge, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED AND ADOPTED.
2. Petitioner's Motion to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C. § 2255 is DENIED WITHOUT AN EVIDENTIARY
3. There is no probable cause to issue a certificate of