United States District Court, E.D. Tennessee, Chattanooga
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
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
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.
Underlying Criminal Proceedings and Direct Review
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].
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].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].
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]. 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].
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.
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].
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].
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].
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].
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).
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.
Petitioner's § 2255 motion and Memoranda in
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.
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).
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 [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.
Petitioner's First Motion to Supplement
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; (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
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).
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.
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.
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).
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 ...