United States District Court, M.D. Tennessee, Nashville Division
KEVIN H. SHARP, District Judge.
Petitioner Antonio Fuller was convicted of aggravated burglary, aggravated robbery, especially aggravated kidnapping, evading arrest, and reckless endangerment. He is serving an aggregate prison sentence of fifty-six years. In November 2010, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). He raised several claims, including ineffective assistance of counsel and sentencing errors under Blakely v. Washington, 542 U.S. 296 (2004). In June 2011, the court dismissed the ineffective assistance claims and deferred ruling on the Blakely claims pending further briefing by the parties. (Docket Nos. 22 and 23).
Fuller appealed the portion of the order dismissing his ineffective assistance claims. (Docket No. 31). On August 31, 2011, the Sixth Circuit dismissed the appeal on the grounds that the order appealed from disposed of fewer than all claims or parties involved in the action and did not direct entry of a final, appealable judgment under Federal Rule of Civil Procedure 54(b), the partial dismissal was not an immediately appealable "collateral order, " and appellate jurisdiction was not invoked because the court had not entered a final decision. (Docket No. 41).
After the appeal was dismissed, Fuller filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). (Docket No. 42). He argued that, based on a recent decision from the Tennessee Supreme Court, State v. White, 362 S.W.3d 559 (Tenn. 2012), his two convictions for aggravated kidnapping should be vacated. The court denied the motion on the ground that Rule 60(b) was not applicable because there had been no final judgment in the case. (Docket No. 44).
Fuller since has filed two motions for summary judgment (Docket Nos. 47 and 57) and two motion to amend (Docket Nos. 55 and 56). The court will address the motions to amend herein.
II. Standard for Evaluating Motions to Amend
The court must now determine whether Fuller should be permitted to amend his original § 2254 petition to add additional claims. Pursuant to 28 U.S.C. § 2242, a federal habeas petition may be amended according to the requirements set forth in Federal Rule of Civil Procedure 15. See Anderson v. United States, No. 01-2476, 2002 WL 857742, at *3 (6th Cir. May 3, 2002); Oleson v. United States, No. 00-1938, 2001 WL 1631828 (6th Cir. Dec. 14, 2001)(stating that the mandate of Fed.R.Civ.P. 15(a), that a court freely grant leave to amend when justice so requires, has been interpreted to allow supplementation and clarification of claims initially raised in a timely § 2255 motion). In considering whether to grant motions to amend under Rule 15, a court should consider whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.1992). Likewise, a motion to amend may be denied if it is brought after undue delay or with dilatory motive. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir.1990).
In his first motion to amend, Fuller seeks to add claims that his kidnapping convictions violate due process. (Docket No. 55). In his second motion to amend, Fuller repeats his due process claims and asserts that he is actually innocent of the crime of especially aggravated kidnapping. (Docket No. 56).
A. First Motion to Amend
Fuller's first motion to amend (Docket No. 55) advances two proposed new due process claims. For the first claim, Fuller relies White, the Tennessee Supreme Court case issued in March 2012 which reconsidered the interplay between kidnapping and other felonies with overlapping elements, like rape and robbery, committed in connection with the kidnapping. There, the Tennessee Supreme Court held that a jury instruction which failed to ask the jury to determine whether a victim's removal or confinement was "essentially incidental" to the accompanying felony offense of aggravated robbery violated the defendant's due process rights. Id. at 577-78. More specifically, the court held that trial courts must ensure that juries return kidnapping convictions only in those instances in which the victim's removal or confinement exceeds that which is necessary to accomplish the underlying felony. Id. at 578.
Fuller contends that his due process rights were violated because the jury instruction on his charges of especially aggravated kidnapping ( See Docket No. 17, Addendum 1, Volume 5 at pp. 85-86) was identical to the jury instruction given in White, 362 S.W.3d 559, 579-80. In his case, as in White, the jury was not instructed on the question of whether the victim's removal or confinement was essentially incidental to the accompanying felony.
Although the Tennessee Supreme Court in White expressly overruled parts of State v. Fuller, 172 S.W.3d 533 (2005), in reaching its decision,  the court also held that its decision should not be "construed as creating a new standard for kidnapping. Instead, [the court was] merely providing definition for the element of the offense requiring that the removal or confinement constitute a substantial interference with the victim's liberty." White, 362 S.W.3d at 578. Consequently, the court cautioned that ...