The opinion of the court was delivered by: Leon Jordan United States District Judge
Pursuant to his guilty plea, petitioner James B. Tilson was convicted of being a felon in possession of a firearm and was sentenced as an armed career criminal to a mandatory minimum sentence of fifteen (15) years imprisonment (i.e., 180 months). 18 U.S.C. §§ 922(g)(1) and 924(e). Proceeding pro se, Tilson now brings this motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. [Doc. 1]. Several motions to amend, also brought by the petitioner, are currently pending and will be addressed first.
The proposed amendments to Tilson's § 2255 motion are subject to a one-year statute of limitations. See 28 U.S.C. § 2255; Mayle v. Felix, 545 U.S. 644 (2005). The limitations statute in the petitioner's case began to run when his conviction became final at the conclusion of his direct review. The petitioner's judgment of conviction was entered on June 27, 2003 and would have become final ten days later, on July 7, 2003, upon the expiration of the ten-day period for filing a notice of appeal. Sanchez-Castellano v. United States, 358 F.3d 424, 427-28 (6th Cir.2004). Thus, the one-year time limit for filing or amending his § 2255 motion would expire, at the latest, on July 7, 2004. The petitioner's first motion to amend [Doc. 7], filed on March 14, 2005,*fn1 was filed some eight months after the deadline. Thus, this motion to amend is untimely; the four others which followed it are even more untimely; and all are barred by § 2255's statute of limitations, unless the amendments "relate back" under Rule 15(c) of the Federal Rules of Civil Procedure to the petitioner's previous claims. Mayle, 545 U.S. at 656-57.
In the first of these motions [Doc. 7], the petitioner seeks to modify his petition to include two additional claims of ineffective assistance, to wit, that his attorney failed to advise him that he could have received a 120-month sentence, instead of the 180 months actually imposed, and also failed to challenge the use of his prior convictions to increase his sentence based on the lack of notice of the enhancement. These allegations were not included in the original pleading. Because these claims are distinct claims, different in type from the original ineffectiveness claim, they do not relate back to his initial pleading and because they do not relate back, Tilson's motion to add them is untimely.
Even if timeliness were not an issue, the motion would still be denied because the amendments would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962) (A proposed amendment may be denied for, among other reasons, "futility of amendment."). The allegation involving a 120-month sentence, apparently based on a guidelines sentencing calculation, ignores the fact that Tilson was not sentenced under the guidelines, but instead under the statute. And the contention that his counsel was ineffective for failing to attack his sentence based on a lack of notice of the armed career criminal enhancement is groundless because the ACCA does not require the government to notify a defendant of its intent to seek an enhanced sentence, United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir. 1997), and because an attorney is not required to raise claims that have no legal basis and are doomed to fail. Krist v. Foltz, 804 F.2d 944, 946-47 (6th Cir.1986). And, counsel cannot be ineffective when he does not raise such claims. Greer v. Mitchell, 264 F.3d 663, 676 (2001).
Moreover, even if notice were required, Tilson had it. He was indicted under § 924(e), the ACCA statute; the plea agreement he signed contained a stipulation that he had nine prior felony convictions, including the three offenses used to sentence him as an armed career criminal; and, finally, the prior convictions warranting an enhanced sentence under the ACCA were listed in the presentence report, to which he did not object, even though he had an opportunity to do so. [Doc. 13 in the criminal file]
In the second motion to amend [Doc. 9], the claim the petitioner proposes to add is that his attorney was ineffective for failing to move to suppress a video tape of his arrest which, according to the petitioner, would have shown that he was not given the warnings required by Miranda v. Arizona, 384 U.S. 486 (1966), and would have resulted in a different outcome. Though the Court cannot conceive of any reason to seek to suppress evidence which, presumably, would have been favorable to the defense (since the tape purportedly depicted a Miranda violation, which might have resulted in the suppression of evidence against the petitioner), the amendment he offers is brand new and, therefore, does not relate back to the filing of the initial § 2255 motion. Because the proposed amendment is time-barred, the motion itself is untimely.
In the third motion to amend [Doc. 11], Tilson argues that his sentence was illegally enhanced, in violation of the rule in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the line of cases which followed it. See, e.g., United States v. Booker, 543 U.S. 220 (2005). The petition does not contain an independent Booker-related claim and, thus, the claim could not relate back to an earlier-filed claim. Therefore, as was the case with the preceding motions, this motion comes too late.
But, even if not time-barred, the motion would be denied based on the futility of amendment. The futility of raising a Booker claim in a § 2255 motion is well settled because the Sixth Circuit has held that the Booker rule is not retroactive and does not apply to collateral proceedings. Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005).
The fourth and fifth motions to amend [Docs. 19, 20] do relate back to the original ineffective-assistance claim, since the offered amendments elaborate on the claim in the original § 2255 petition. Hence, those motions are timely and the Court will considered the proffered amendments in rendering its decision in this matter.
The United States has responded to the motion to vacate, contending that, in the plea agreement, the petitioner waived his right to file a motion to vacate with respect to all claims, save claims of ineffective assistance of counsel and prosecutorial misconduct, and that, even as to these claims, relief is not justified. [Doc. 5].
This Court must vacate and set aside a petitioner's conviction if it finds that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, a petitioner "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 434, 428 (1962)).
Moreover, where an alleged error could have been asserted on direct appeal but was not, it is considered procedurally defaulted and a petitioner must demonstrate "cause" for his failure to previously raise the issue, and also must demonstrate "actual prejudice" resulting from his failure to present the claim on direct appeal. United States v. Frady, 456 U.S. 152, 167-68 (1982). Courts are entitled to presume, once a direct appeal has been decided, a defendant "stands fairly and finally convicted," and thus, absent a showing ...