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Rouse v. United States

United States District Court, E.D. Tennessee

April 20, 2017

DANIEL W. ROUSE, Petitioner,



         Before the Court is Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 161, 168].[1] 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.

         I. BACKGROUND

         In 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)].

         Based 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].

         Petitioner 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)].

         On 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].

         On 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].


         The 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)].

         A. Federal Rule of Civil Procedure 15(a)

         While 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)).

         B. Timeliness of Original and Proposed Grounds for Relief

         Section 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 ...

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