Berry v. United States

Decision Date30 March 2022
Docket Number1:16-cv-3489-NLH
PartiesANTHONY BERRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of New Jersey


Anthony Berry, FCI Schuylkill Petitioner pro se

Philip R. Sellinger, United States Attorney Sara A. Aliabadi Assistant United States Attorney United States Attorney's Office for the District of New Jersey Attorneys for Respondent



This matter comes before the Court on Petitioner Anthony Berry's second motion to vacate, set aside, or correct his criminal sentence pursuant to 28 U.S.C. § 2255. ECF No. 24.[1] The United States opposes the motion. ECF No. 26. For the reasons stated below, the Court will deny the § 2255 motion. No. certificate of appealability shall issue.


On February 5, 2009, Petitioner was charged by criminal complaint with three charges stemming from his role in the April 2008 armed robbery of a Sports Authority distribution facility in Burlington Township, New Jersey. United States v. Berry, No. 10-cr-051 (D.N.J. Feb. 5, 2009) (“Crim. Case”), ECF No. 1. On January 28, 2010, Petitioner pled guilty to a two-count Information charging one count of conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a); and one count of use of a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 942(c)(1)(A)(ii), (c)(1)(C)(i), and § 2. Crim. Case, ECF Nos. 11 & 14. In exchange for the guilty plea, the Government agreed to forego charging Petitioner with any additional crimes associated with “conspiracy to rob, and subsequent armed robbery of the Sports Authority Distribution Facility in Burlington Township, New Jersey, on or about April 5, 2008[.] Crim. Case, ECF No. 14 at 1.

The plea agreement explained that the offenses to which Petitioner would plead guilty carried statutory maximum sentences of twenty years and life, respectively. Id. at 2. Petitioner acknowledged that the length of his actual sentence was an issue to be decided by the Court:

The sentence to be imposed upon Anthony Berry is within the sole discretion of the sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C. §§ 3551-3742, and the sentencing judge's consideration of the United States Sentencing Guidelines. The United States Sentencing Guidelines are advisory, not mandatory. The sentencing judge may impose any reasonable sentence up to and including the statutory maximum term of imprisonment and the maximum statutory fine. This Office cannot and does not make any representation or promise as to what guideline range may be found by the sentencing judge, or as to what sentence Anthony Berry ultimately will receive.

Id. at 2. Schedule A, an addendum to the plea agreement, specified that:

This Office and Anthony Berry agree to stipulate to the following facts:
a. Anthony Berry agreed with B.J. and T.D. to rob the Sports Authority Distribution Facility in Burlington Township, NJ.
b. B.J. stole a Salson Logistics tractor-truck for use in taking trailers full of Sports Authority merchandise.
c. Anthony Berry, B.J. and T.D. traveled from Philadelphia, PA to the Sports Authority Distribution Facility in Burlington Township, NJ, on April 5, 2008, with the intent to steal Sports Authority merchandise.
d. At the Sports Authority Distribution Facility, Anthony Berry approached the guard shack and, at gunpoint and in the presence of T.D., ordered the guard to proceed to an empty trailer where the security guard was bound and ordered to lay face down inside the empty trailer. e. T.D. stood watch over the security guard in the empty trailer while Anthony Berry assumed the role of the security guard in the guard shack at the Sports Authority Distribution Facility.
f. Between approximately 5:45 pm and 9:30 pm, B.J., using the stolen Salson Logistics tractor-truck, removed from the Sports Authority Distribution Facility three Salson Logistics trailers which were fully loaded with Sports Authority merchandise.
g. T.D. and A.B. stole the security guard's car which was on the grounds of the Sports Authority Distribution Facility and followed the final tractor trailer, driven by B.J., from the Sports Authority Distribution Facility and fled the area.
h. Thereafter, Anthony Berry, B.J. and T.D. traveled from Burlington County, N.J. to Philadelphia, PA and met at a location with the intent to sell the stolen Sports Authority merchandise.
i. The offense involved losses totaling approximately $231, 726 which represents the cost of the stolen Sports Authority merchandise.

Id. at 6. Schedule A further stated that [i]f the sentencing court accepts a factual stipulation set forth above, both parties waive the right to file an appeal, collateral attack, or motion claiming that the sentencing court erred in doing so.” Id. at 6-7.

Petitioner acknowledged in writing that he received the plea agreement from his counsel and that he read it and understood it “fully”. Id. at 5. Petitioner acknowledged that he “accept[s] the terms and conditions set forth in th[e] letter and acknowledge[s] that it constitutes the plea agreement between the parties.” Id. Petitioner again recognized the stipulations from the plea agreement in his Application for Permission to Enter Plea of Guilty”:

The plea agreement contains stipulations regarding certain facts. I understand that if the sentencing court accepts a factual stipulation set forth in the plea agreement, both I and the government have waived the right to file an appeal, collateral attack, writ, or motion claiming that the sentencing court erred in doing so.

Crim. Case ECF No. 15 at 5.

Petitioner appeared before the late Judge Joseph E. Irenas, U.S.D.J., on January 28, 2010 to enter his plea. Crim. Case ECF No. 13. Petitioner entered a plea of guilty to the two-count Information under oath, and the terms of the plea agreement were read into the record. See Id. The Court ordered the plea agreement approved and the plea accepted. See Id. On October 5, 2010, Judge Irenas sentenced Petitioner to a 100-month term of imprisonment on Count One, with 50 months to be served concurrently with a previously imposed sentence in the Eastern District of Pennsylvania and 50 months to be served consecutively to the Pennsylvania sentence. Crim. Case ECF No. 17 at 2. Judge Irenas also imposed a 125-month term of imprisonment on Count Two, to be served consecutively to both Count One and the sentence from the Eastern District. Id. Petitioner received supervised release terms of 3 years on Count One and 5 years on Count Two, to be served concurrently. Id. at 3. Petitioner did not file a direct appeal.

On June 27, 2012, Petitioner filed his first motion to vacate his sentence pursuant to § 2255, arguing that Congress did not have the constitutional authority to criminalize the statutes under which he pled guilty. Berry v. United States, No. 12-cv-03928 (D.N.J.). Judge Irenas dismissed the petition because it did not comply with § 2255's one-year statute of limitations. Id. (July 13, 2012) (ECF No. 4). Petitioner did not seek a certificate of appealability from the Third Circuit.

Petitioner filed the current motion on June 16, 2016, arguing that his conviction and term of imprisonment must be vacated because Hobbs Act conspiracy is not a “crime of violence” under 18 U.S.C. § 924(c) after intervening Supreme Court decisions. ECF No. 1.[2] After receiving briefing from the parties, the Court transferred the petition to the Third Circuit pursuant to 28 U.S.C. § 1631 so that Petitioner might seek authorization to file his second petition under § 2255(h)(2). ECF No. 22. On April 28, 2020, the Third Circuit granted Petitioner's application and transferred the petition back to this Court. ECF No. 24.

The United States filed an updated answer, ECF No. 26, and Petitioner submitted a response, ECF No. 27.

Section 2255 provides, in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).


A. Jurisdiction

The Third Circuit granted Petitioner's request to file a second or successive § 2255 motion, ECF No. 24, but the Court must independently assess whether Petitioner's claims meet the requirements of § 2244. See 28 U.S.C. § 2244(b)(4) (“A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.”). Petitioner must make a prima facie showing that his second or successive § 2255 motion relies on a new rule of constitutional law made retroactive to cases on collateral review. 28 U.S.C. § 2244(b)(3)(C). The Third Circuit has characterized this as “a ‘light burden.' In re Matthews, 934 F.3d 296, 301 (3d Cir. 2019). The Court concludes that Petitioner has made this prima facie showing.

On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague. Johnson v. United States, 576 U.S. 591 (2015).[3] On June 24, 2019, the Supreme Court held that the residual clause in 18 U.S.C. § 924(c)'s definition of “crime of violence” was also void for vagueness. United States v. Davis, 139 S.Ct 2319 (2019). Petitioner argues that the Court must vacate his § 924(c)...

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