United States District Court, E.D. Tennessee, Knoxville
pro se federal prisoner's motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 is before the
Court on three motions filed by Petitioner. The first one is
a Motion for Leave to Expand the Record to include various
letters and one affidavit [Docs. 129, 129-1 to
129-20]. Petitioner has submitted for inclusion in
the record copies of numerous letters to and from his
attorneys, a judicial officer, and entities which supervise
ethical conduct of lawyers-all of which involve his
dissatisfaction with and complaints about his attorneys'
representation. Petitioner also offers the affidavit of his
former landlady, Reeda E. Lloyd, in which she states that
Petitioner rented a house from her, but that he no longer
lived in the house after December, 2009 [Doc. 129-19].
of the Rules Governing Section 2255 Proceedings authorizes
the Court to expand the record, in relevant part, as follows:
(a) In General. If the motion is not dismissed, the judge may
direct the parties to expand the record by submitting
additional materials relating to the motion. The judge may
require that these materials be authenticated.
(b) Types of Materials. The materials that may be required
include letters predating the filing of the motion . . ..
Affidavits may also be submitted and considered as part of
(c) Review by the Opposing Party. The judge must give the
party against whom the additional materials are offered an
opportunity to admit or deny their correctness.
district court has the discretion to require expansion of the
record with additional and appropriate materials for motions
not dismissed on the pleadings, Blackledge v.
Allison, 431 U.S. 63, 82 n.25 (1977), “depending
on the nature of the allegations” when doing so
“may avoid the necessity of an expensive and
time-consuming evidentiary hearing.” Raines v.
United States, 423 F.2d 526, 530 (4th Cir. 1970.)
Court does not see the relevance of the materials sought to
be added, i.e., correspondence regarding Petitioner's
discontent with his attorney or his landlady's affidavit
regarding the time Petitioner rented her house, to the types
of ineffective assistance claims asserted in this § 2255
Petitioner's motion to expand the record is DENIED [Doc.
next submission is a Motion for Leave to Submit Affidavit,
“in furtherance of his claims in his Motion under 28
U.S.C. § 2255” [Doc. 139]. No affidavit is
attached to the motion. However, two affidavits are attached
to Petitioner's last motion seeking: (1) a default
judgment against the government or, (2) if the motion for a
default judgment fails, an extension of time to reply to the
response to his § 2255 motion [Doc. 140 pp.1, 8-10].
Motion for Leave to Submit Affidavit is DENIED [Doc. 139],
absent any proffered affidavit. However, if appropriate, the
Court will consider the affidavits appended to his last
motion [Doc. 139].
third motion, as noted, is a Motion for Default Judgment, in
which Petitioner argues that the government's response
was untimely, despite the Court's granting it several
extensions of time to file the response [Doc.
140]. Petitioner alternatively asks for
additional time to file his reply, should the Court deny the
Motion for Default Judgment [Id.].
Rules Governing Section 2255 Cases control motions to vacate
under 28 U.S.C. § 2255 and they do not provide for
defaults or default judgments. A default judgment is a
sanction and sanctions should be proportionate to the wrong.
Bleitner v. Welborn, 15 F.3d 652, 753 (7th Cir.
1994). To grant Petitioner the relief he is seeking in his
motion to vacate (i.e., a finding that he had ineffective
assistance of counsel with the consequences attendant to such
a finding) would not be proportionate to the government's
purported failure to file a timely response. Moreover,
default judgments are disfavored in habeas corpus cases.
Id.; Allen v. Perini, 424 F.2d 134, 138 (6th
Cir.1970). The part of the Motion which seeks an extension of
time to file a reply is MOOT because Petitioner has filed his
reply [Doc. 141].
the Court DENIES Petitioner's Motion for a ...