United States District Court, E.D. Tennessee
DANIEL W. ROUSE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
GREER UNITED STATES DISTRICT JUDGE
the Court is Petitioner's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255 [Docs.
161, 168]. The United States responded in opposition
on April 15, 2016 [Doc. 163]; Petitioner replied in turn on
June 9, 2016 [Doc. 167]. Recently, the United States filed a
motion to deny and dismiss the petition based on an
intervening decision of the Supreme Court [Doc. 170]. Also
before this Court are FDSET's motion to withdraw as
counsel and for an extension of time so that Petitioner can
submit additional pro se arguments in support of his claim
[Docs. 171, 172]. On April 18, 2017, Petitioner filed what
the Court interprets as a motion for leave to amend the
original petition to include two novel grounds for relief
[Doc. 174]. For the reasons below, Petitioner's request
for leave to amend [Doc. 174] and FDSET's request for an
extension of time [Doc. 171] will be DENIED; FDSET's
motion to withdraw [Doc. 172] will be GRANTED. The United
States's motion to deny and dismiss [Doc. 170] will be
GRANTED and the supplemented petition [Docs. 161, 168] will
be DENIED and DISMISSED WITH PREJUDICE.
2008, Petitioner pled guilty to bank robbery, in violation of
18 U.S.C. § 2113 [Doc. 30]. Petitioner faced a statutory
penalty of up to twenty years' imprisonment because of
the offense [Id. ¶ 1(a)]. In his plea
agreement, Petitioner “knowingly and voluntarily
waive[d] the right to file any motions or pleadings pursuant
to 28 U.S.C. § 2255, ” except for “claims of
ineffective assistance of counsel or prosecutorial
misconduct” [Id. ¶ 13(b)].
on prior Tennessee convictions for aggravated burglary and
evading arrest, the United States Probation Office deemed
Petitioner to be a career offender under Section 4B1.1 of the
United States Sentencing Guidelines with an advisory
Guideline range of 151 to 188 months' imprisonment
[Presentence Investigation Report (PSR) ¶¶ 34, 35,
26, 66]. The Court sentenced Petitioner to 188 months'
incarceration on February 4, 2009 [Doc. 90].
appealed, but the Sixth Circuit dismissed his appeal as
barred by the appeal-waiver in his plea agreement [Doc. 100].
Petitioner did not seek a writ of certiorari and, as a
result, his conviction became final for purposes of §
2255(f)(1) on June 21, 2010. See Clay v. United
States, 537 U.S. 522, 525 (2003) (explaining that a
conviction affirmed on appeal becomes final when the
ninety-day period for seeking a writ of certiorari expires).
The Supreme Court decided Johnson v. United tates
-invalidating the residual clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)-on
June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner filed the
instant petition less a year later [Docs. 161, 168
(challenging his career offender designation)].
March 6, 2017, the Supreme Court decided Beckles v.
United States, which held that the United States
Sentencing Guidelines are “not amenable to vagueness
challenges.” 137 S.Ct. 886, 894 (2017). Two weeks
later, this Court entered an Order (1) explaining that
Beckles necessarily meant that “Johnson .
. . does not undermine sentences based on Guideline
enhancements;” (2) instructing the parties to
“file any motion that they want[ed] the Court to
consider in conjunction with, or prior to, ruling on [the
instant] petition on or before April 1, 2017;” and
(3) requiring that responsive pleadings be filed on or before
April 15, 2017 [Doc. 169].
March 27, 2017, the United States filed a motion to dismiss
Petitioner's Johnson-based challenge to his
career offender designation in light of Beckles
[Doc. 170]. Petitioner responded to the motion to dismiss by
filing a motion for leave to amend that (1) reiterates his
entitlement to collateral relief based on Johnson
and (2) attempts to add two novel claims of ineffective
assistance of counsel [Doc. 174].
MOTION FOR LEAVE TO AMEND
United States opposes Petitioner's most recent attempt to
amend the petition [Doc. 173 (suggesting that any newly filed
grounds would be untimely and that this Court should deny any
attempt by Petitioner to amend his existing § 2255
petition on that basis)].
Federal Rule of Civil Procedure 15(a)
it is true that Rule 15(a) of the Federal Rules of Civil
Procedure provides that leave to amend should “be
freely given when justice so requires, ” Fed.R.Civ.P.
15(a), relevant factors include “undue delay in filing,
lack of notice to the opposing party, bad faith by the moving
party, repeated failure to cure deficiencies by previous
amendments, undue prejudice to the opposing party, and
futility of amendment.” Anderson v. Young
Touchstone Co., 735 F.Supp.2d 831, 833 (W.D. Tenn. 2010)
(quoting Forman v. Davis, 371 U.S. 178, 182 (1965)).
Timeliness of Original and Proposed Grounds for
2255(f) places a one-year statute of limitations on all
petitions for collateral relief under § 2255 running
from either: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making
a motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action; (3) the date on which the right asserted
was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence. 28 U.S.C. § 2255(f). This
same provision governs the timeliness of later-filed
amendments. Cameron v. United States, No.
1:05-cv-264, 2012 WL 1150490, at *3-6 (E.D. Tenn. April 5,
2012) (citing Olsen v. United States, 27 F.
App'x 566 (6th Cir. Dec. 14, 2001)). Petitioner has
failed to demonstrate that subsections (f)(2) or (f)(4) apply
to his case. i.e., he has not established that any illegal
action by the government prevented him ...