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Carter v. United States

United States District Court, E.D. Tennessee, Chattanooga

March 19, 2018

WALTER CARTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          HARRY S. MATTICE, JR. UNITED STATES DISTRICT JUDGE

         This case is before the Court upon a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. 175] filed by Walter Carter (“Petitioner”). Petitioner also has filed two memoranda in support of that motion [Docs. 176, 180] and two separate motions for leave to supplement the § 2255 motion to add additional claims [Docs. 192, 204]. The Court previously granted Petitioner's first motion for leave to supplement his § 2255 motion but indicated it would consider the merits only of any claims set forth therein that are timely pursuant to Rule 15(c) of the Federal Rules of Civil Procedure [Doc. 193]. Petitioner's second motion for leave to supplement his § 2255 motion [Doc. 204] is pending.

         For the following reasons, Petitioner's § 2255 motion [Doc. 175] will be DENIED. In addition, all of the claims advanced in Petitioner's first motion for leave to supplement [Doc. 192] will be DISMISSED as untimely. Petitioner's second motion for leave to supplement his § 2255 motion [Doc. 204] will be DENIED as untimely. Petitioner's motion for counsel [Doc. 166] and motion for new trial [Doc. 174] both will be DENIED.

         I. PROCEDURAL HISTORY

         A. Underlying Criminal Proceedings and Direct Review

         On May 11, 2010, Petitioner was charged in a four-count superseding indictment with: possession with intent to distribute five grams or more of crack cocaine (Count One); maintaining a premises for the purpose of distributing crack cocaine (Counts Two and Three); and conspiracy to distribute and to possess with intent to distribute fifty grams or more of crack cocaine (Count Four) [Doc. 65].

         A four-day jury trial held in August of 2010 ended in the declaration of a mistrial [Doc. 101]. Following a re-trial, Petitioner was found guilty by jury verdict as to Counts One and Four of the superseding indictment, and not guilty as to Count Two, on October 15, 2010 [Doc. 122].[1]The jury also found that Petitioner was responsible for possessing with intent to distribute five grams or more of cocaine base on Count One, and was responsible for conspiring to distribute at least five but less than fifty grams of cocaine base on Count Four [Id. pp. 1, 3].

         Prior to trial, the government filed an information pursuant to 21 U.S.C. § 851(a) setting forth two prior felony drug convictions which would qualify Petitioner for the enhanced penalties set forth in 21 U.S.C. § 841(b)(1)(B) upon his conviction for an offense set forth in the superseding indictment [Doc. 94]. With the statutory enhancement, the minimum term of imprisonment warranted on each of Counts One and Four was not less than ten years to a maximum term of life. 21 U.S.C. §§ 841(b)(1)(B); 846; 851. A presentence investigation report (“PSIR”) prepared prior to sentencing identified five prior felony convictions of either a crime of violence or a controlled substance offense that qualified Petitioner as a career offender under § 4B1.1 of the United States Sentencing Guidelines (“USSG”) [PSIR ¶ 36, 37, 43, 44 and 46].[2] Petitioner's status as a career offender increased his total offense level to 37 which, with a criminal history category of VI, resulting in a guideline range of 360 months to life [PSIR ¶ 78].

         In light of the enhanced statutory penalties and his status as a career offender, Petitioner was sentenced on May 16, 2011, to a term of imprisonment of 360 months on each of Counts One and Four of the superseding indictment, to be served concurrently, and concurrent terms of supervised release of eight years on each count [Doc. 140 pp. 2-3]. Petitioner's conviction and sentence were affirmed by the Sixth Circuit Court of Appeals on April 3, 2013 [Doc. 160]. On October 8, 2013, the United States Supreme Court denied Petitioner's petition for a writ of certiorari [Doc. 165].

         B. Post-Conviction Proceedings

         On September 30, 2014, Petitioner filed a pro se § 2255 motion raising two grounds for relief: (1) a Fourth Amendment violation arising from the warrantless search of his cell phone; and (2) a Sixth Amendment violation arising from “improper judicial fact-finding” at sentencing [Doc. 175]. In an accompanying memorandum in support of his § 2255 motion filed the same day, Petitioner alleged that his counsel was ineffective in failing to obtain a plea agreement with the government [Doc. 176 pp. 9-10]. Two months later, Petitioner filed a second memorandum in support of his § 2255 motion formally raising ineffective assistance of counsel in failing to obtain a plea agreement as a ground for relief [Doc. 180 pp. 17-18]. The government filed a response in opposition to Petitioner's § 2255 motion [Doc. 182] and Petitioner filed a reply [Doc. 183].

         On May 31, 2016, Petitioner filed a motion for leave to “supplement” his § 2255 motion [Doc. 192] seeking to raise additional claims of ineffective assistance relating to counsel's: (1) failure to argue for the application of the Fair Sentencing Act at his sentencing hearing; (2) failure to challenge the § 851(a) sentencing enhancement; and (3) failure to challenge the career offender enhancement under USSG § 4B1.1 [Doc. 192]. The Court granted the motion but only to the extent it would consider the merits of any of the new claims that relate back to the date of the original pleading within the meaning of Federal Rule of Civil Procedure 15 (c) [Doc. 193]. After Petitioner filed a memorandum in support of the new claims [Doc. 200], the government filed a response in opposition arguing that all of the new claims are untimely and otherwise are without merit [Doc. 201], to which Petitioner filed a reply [Doc. 202].

         On September 18, 2017, Petitioner filed a second motion to “supplement” his § 2255 motion seeking to add a claim challenging his status as a career offender based on the Supreme Court's decision in Mathis v. United States, __U.S.__, 136 S.Ct. 2243 (2016) [Doc. 204]. The government filed a response in opposition arguing that Petitioner's new claim also is untimely and otherwise meritless [Doc. 207].

         II. TIMELINESS

         Petitioner's filings in this case consist of his initial § 2255 motion [Doc. 175] and memorandum in support [Doc 176], a second memorandum in support [Doc. 180], a first motion for leave to supplement [Doc. 192] and supporting memorandum [Doc. 200], and a second motion to supplement [Doc. 204]. The government argues that, with the exception of the initial § 2255 motion and memoranda in support, all of Petitioner's other filings are untimely under § 2255(f) and do not relate back to the date of the original pleading within the meaning of Federal Rule of Civil Procedure 15(c) [Docs. 182, 201, 207].

         A. Applicable Law

         Section 2255(f) places a one-year period of limitation on all petitions for collateral relief under § 2255 which runs from the latest of: (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).

         The Supreme Court has held that the one-year limitation period set forth in § 2255(f) is not jurisdictional, Day v. McDonough, 547 U.S. 198, 205 (2006), and thus may be subject to equitable tolling in appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). Moreover, the failure to comply with a statute of limitations is an affirmative defense which must be asserted and can be waived. Scott v. Collins, 286 F.3d 923, 927-28 (6th Cir. 2002) (abrogated on other grounds Day, 547 U.S. at 208-09).

         B. Petitioner's § 2255 motion and Memoranda in Support

         Petitioner's conviction in this case became final when the United States Supreme Court denied his petition for a writ of certiorari on October 8, 2013. See Clay v. United States, 537 U.S. 522, 527 (2003) (conviction becomes final when the Supreme Court “affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires”). Thus, the one-year period of limitation set forth in § 2255(f)(1) began on October 8, 2013, and ran until October 8, 2014. Petitioner's initial § 2255 motion and memorandum in support both were filed on September 30, 2014, within the one-year period. Accordingly, the Court will consider on the merits the claims raised in Petitioner's timely § 2255 motion and the arguments raised in his first memorandum in support.

         Petitioner's second memorandum in support of his § 2255 motion was not filed until November 21, 2014, over a month after the expiration of the 1-year limitation period, and thus is untimely unless it relates back to the original timely filed motion. Pursuant to Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure, an amended pleading “relates back to the date of the original pleading” when “the amendment asserts a claim . . . that arose out of the conduct, transaction or occurrence set out-or attempted to be set out-in the original pleading.” For purposes of Rule 15, the “original pleading” in a habeas proceeding is the § 2255 motion as initially filed. Mayle v. Felix, 545 U.S. 644, 655 (2005).

         Here, Petitioner's second memorandum expands upon the Fourth Amendment argument raised in his initial motion and formally raises ineffective assistance of counsel in the plea bargaining context as a ground for relief, a claim to which Petitioner had alluded in his first memorandum in support of his § 2255 motion[3] [Doc. 176 pp. 9-10]. Because the ineffective assistance of counsel claim arose from the same alleged conduct, i.e., the failure to obtain a plea agreement, that Petitioner attempted to set out in his first timely-filed memorandum, and the second memorandum otherwise merely elaborates on the claims raised in Petitioner's timely filed motion and first memorandum, the Court finds that the second memorandum relates back to the date of the original motion under Rule 15(c)(1)(B). See, e.g., Anderson v. United States, 39 Fed. App'x 132, 136 (6th Cir. 2002) (relation back found where amendment did not raise entirely new claim but merely streamlined timely-filed motion). Accordingly, the Court will consider on the merits the ineffective assistance of counsel claim raised in Petitioner's second memorandum, as well as the additional arguments raised in support of his original Fourth Amendment claim.

         C. Petitioner's First Motion to Supplement

         Petitioner's first motion to supplement his § 2255 motion seeks to raise new claims of ineffective assistance of counsel under three new theories, all of which relate to his sentencing proceedings: (1) counsel's failure to argue for the application of the Fair Sentencing Act;[4] (2) counsel's failure to challenge the application of the § 851 enhancement; and (3) counsel's failure to challenge the application of the career offender enhancement under USSG § 4B1.1 [Doc. 192]. Although the Court previously granted this motion, it explicitly did so only to the extent it raises new claims that relate back to the date of the original pleading within the meaning of Rule 15(c) [Doc. 193]. The government subsequently filed a response asserting the statute of limitations as an affirmative defense and arguing that all of the claims Petitioner seeks to raise in his first supplement are untimely [Doc. 201]. The Court agrees.

         As an initial matter, although captioned as a motion to “supplement, ” Petitioner's motion more accurately is to be construed as a motion to amend his § 2255 motion, since it seeks to add three entirely new claims to his original pleading based on events transpiring in relation to his sentencing, which obviously occurred prior to his original pleading. See Michael v. Ghee, 498 F.3d 372, 386 (6th Cir. 2007) (a Rule 15(a) motion for leave to amend, not a Rule 15(d) motion to supplement, is the appropriate mechanism through which a party may assert additional claims for relief); United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (within the meaning of Rule 15, supplements relate to events that have transpired since the date of the original pleading, while amendments typically rely on matters in place prior to the filing of the original pleading).

         An attempt to raise a new claim for relief in a Rule 15(c) motion to amend is subject to the one-year statute of limitations set forth in § 2255(f), Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008), and “'a party cannot amend a § 2255 petition to add a completely new claim after the statute of limitations has expired.'” United States v. Clark, 637 Fed. App'x 206, 209 (6th Cir. 2016) (quoting United States v. Thomas, 221 F.3d 430, 436 (3d Cir. 2000)). “Consequently, a Rule 15 motion will be denied where it is filed after that period expires unless the proposed amendment relates back to the date of the original pleading within the meaning of Rule 15(c)(2).” Howard, 533 at 475-76. As already noted, for purposes of Rule 15, the “original pleading” in a habeas proceeding is the § 2255 motion as initially filed. Mayle, 545 U.S. at 655.

         Petitioner's first motion to supplement seeks to add three completely new claims to these proceedings. However, the motion was not filed until May 31, 2016, over two-and-a-half years after his conviction became final on October 8, 2013, and approximately 19 months beyond the expiration of the one-year limitation period set forth in § 2255(f)(1). As Petitioner's motion is untimely under § 2255(f)(1), and there is no basis to support a later triggering date under § 2255(f)(2), (3) or (4), the new claims Petitioner wishes to raise may be considered only if they relate back to the claims raised in his timely § 2255 motion as initially filed under Rule 15(c). They do not.

         Relation back under Rule 15(c) is in order when the petition as initially filed and the proposed amendment to that petition state claims that are “tied to the same common core of operative facts.” Mayle, 545 U.S. at 664. However, a claim that “asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth” will not so relate back. Howard, 533 at 476 (quoting Mayle, 545 U.S. at 650); see also Hicks, 283 F.3d at 388 (“Rule 15(c) does not apply where the prisoner's proposed amendment makes claims or is based on occurrences ‘totally separate and distinct, ‘in both time and type' from those raised in his original motion'”) (citation omitted).

         Here, the original pleading, i.e., the § 2255 motion as initially filed, raised only two claims-a Fourth Amendment claim arising from the warrantless search of Petitioner's cell phone and a Sixth Amendment claim arising from “improper” judicial fact-finding, specifically, the Court's application of a two-level increase to Petitioner's base offense level under the USSG for possession of a firearm. In addition, Petitioner's timely first memorandum in support, which the Court liberally will construe as part of the “original pleading, ” attempted to set out conduct ...


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