United States District Court, E.D. Tennessee, Greeneville
Jordan United States District Judge
the Court are Petitioner Quincy Dee James's pro se motion
to vacate, set aside or correct sentence pursuant to 28
U.S.C. § 2255, and the United States' response in
opposition [Docs. 1, 4]. Also pending before the Court are
Petitioner's motions to supplement the record [Doc. 2]
and for leave to supplement/amend claim three [Doc. 5], and
the United States' response in opposition to
Petitioner's latter motion [Doc. 7]. For the reasons that
follow, the Court will DENY Petitioner's
motions to supplement the record [Doc. 2] and for leave to
supplement/amend [Doc. 5] and also will DENY
and DISMISS his § 2255 motion [Doc. 1].
RELEVANT FACTS AND PROCEDURAL HISTORY
April 14, 2015, a grand jury issued a four-count indictment
charging Petitioner with three counts of distribution of a
quantity of cocaine, each in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (Counts 1, 2, and 3),
and one count of possession with intent to distribute 28
grams or more of cocaine base, a violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B) (Count 4) [Doc. 1,
Case No. 2:15-CR-25]. The parties entered into a plea
agreement under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure,  in which Petitioner agreed to plead guilty
to Count 4; the United States agreed to move to dismiss the
remaining counts at sentencing, and the parties agreed to a
180-month sentence [Doc. 10, Case No. 2:15-CR-25].
Court draws the facts from those to which Petitioner
stipulated, as contained in the factual basis in the plea
agreement [Id. ¶4]-facts that were repeated in
his Revised Presentence Investigation Report
(“PSR”) [Doc. 22 (sealed), Case No. 2:15-CR-25].
From February to August of 2014, law enforcement officials,
using confidential sources and audio-recorded conversations,
conducted undercover drug operations in Sullivan County,
Tennessee. Over that six-month period, Petitioner and
confidential sources engaged in two crack-cocaine
transactions- one in February of 2014, and one in early
August, 2014. In October, 2014, officers obtained and
executed a search warrant for a local residence.
the execution of the search warrant, officers found at the
residence 89.99 grams of crack cocaine in the hallway
bathroom toilet and several glass measuring cups that,
according to field tests, were positive for cocaine residue.
Petitioner and a Jasmine Carr were present at the residence
during the search. Ms. Carr told officers (and provided a
written statement in accordance with her oral recitation)
that Petitioner had been selling cocaine to several
individuals. Ms. Carr also disclosed that Petitioner had told
her that the police were coming, had scooped up a lot of
crack cocaine lying near the kitchen sink, and had run to the
hallway bathroom. (The drugs were recovered before they could
be flushed down the toilet.)
controlled substance offense to which Petitioner agreed to
plead guilty involved at least 112 grams but less than 196
grams of crack cocaine. Petitioner stipulated that he had
incurred two prior felony drug convictions in the Sullivan
County, Tennessee Criminal Court before he committed his
federal offense-one on July 16, 2008, for possession of .5
grams or more of cocaine for resale, and one on September 12,
2008, for possession of .5 grams or more of cocaine within 1,
000 feet of a school zone, with the intent to deliver.
Petitioner pled guilty, a probation officer prepared
Petitioner's PSR. The probation officer determined that
Petitioner's base offense level for the stipulated
quantity of crack cocaine was 26 [Doc. 22 at ¶ 25].
However, given Petitioner's two prior felony offenses for
a controlled substance offense (per his stipulation), the
probation officer found that Petitioner met the criteria for
career offender status and that his resulting adjusted
offense level was 34 [Id. at ¶ 31]. Petitioner
received a total three-point reduction for acceptance of
responsibility, which lowered his total offense level to 31
[Id. at ¶ 34]. Petitioner's criminal
history category was VI, due to the career offender
designation [Id. at ¶ 55]. Based on
Petitioner's total offense level of 31 and his criminal
history category of VI, his resulting Guidelines range was
188 to 235 months' imprisonment [Id. at
¶82]. The probation officer recognized that, if the
Court accepted the terms of Petitioner's Rule 11(c)(1)(C)
plea agreement, his guidelines sentence would be 180 months
[Id. at 83].
October 20, 2015, Petitioner was sentenced, pursuant to the
Rule 11(c)(1)(C) plea agreement, to the negotiated sentence
of 180 months' imprisonment [Doc. 23, Minutes, Case No.
2:15-CR-25]. Judgment entered the next day [Doc. 24,
Judgment]. Petitioner did not appeal, though he had 14 days
to do so, see Fed. R. App. P. 4(b)(A), but instead
filed this motion to vacate on October 28, 2016,
alleging that, in four instances, his attorney gave him
ineffective assistance [Doc. 1].
PETITIONER'S MOTION TO SUPPLEMENT THE RECORD
noted, Petitioner filed his barebones § 2255 motion on
October 28, 2016, alleging claims of ineffective assistance
[Doc. 1 at 4-8]. Although the motion is sparse in details, it
does set forth the grounds upon which relief is requested
(ineffective assistance of counsel). Petitioner's motion
to supplement the record [Doc. 2], filed contemporaneously
with his § 2255 motion, is different.
explains, in the motion to supplement, that he would like to
file a memorandum of law in support of his § 2255 motion
“in the very near future” and that he will make
no attempt to assert additional claims [Doc. 2].
Petitioner's motion is open-ended as to time because he
does not specify the date or the approximate period “in
the very near future” that he intends to file the
memorandum of law. Nor does Petitioner offer the grounds or
supporting arguments he will include in his proposed
memorandum of law, though he does pledge that he “will
not attempt to submit additional claims [Id.].
motion must “state with particularity the
grounds” for the motion, Fed.R.Civ.P. 7(b)(1)(b), and
Petitioner's skeletal motion to supplement the record
does not comply with that procedural requirement.
Accordingly, Petitioner's motion for leave to supplement
the record [Doc. 2] will be DENIED.
PETITIONER'S MOTION FOR LEAVE TO
motion to supplement/amend [Doc. 5] was filed on April 3,
2017, just shy of five months past the lapse of the
limitations statute in § 2255(f)(1). The motion asserts
a new attorney error, in that it maintains that counsel was
ineffective for failing to argue that his prior conviction
was not a “controlled substance offense” as that
term is used in the career offender guideline [Id.
at 3]. At the outset, the Court must determine whether
Petitioner's motion is a supplemental pleading,
see Fed.R.Civ.P. 15(d), or an amendment,
see Fed.R.Civ.P. 15(a), since he has styled it as
both [Doc. 5].
Motion to Supplement
supplement, under Rule 15(d), involves “any
transaction, occurrence, or event that happened after the
date of the pleading to be supplemented.” Id.
The proposed supplement does not refer to any transaction,
occurrence, or event subsequent to the filing of
Petitioner's § 2255 motion. Instead, the allegations
offered in the supplement are connected to Petitioner's
criminal proceedings, specifically to his career offender
designation in his PSR. The only offerings in the supplement
that post-date the § 2255 motion are court decisions,
such as Beckles, 137 S.Ct. 886 (2017),
Molina-Martinez v. United States, 136 S.Ct. 1338
(2016), Mathis v. United States, 136 S.Ct. 2243
(2016), and Hinkle v. United States, 832 F.3d 569
(5th Cir. 2016) [Doc. 5 at 3-5]. The question then becomes
whether judicial decisions qualify as “transactions,
occurrences, or events.”
Sixth Circuit has supplied the answer:
The question in this case is whether intervening judicial
decisions are the sort of “occurrences or event”
to which Rule 15(d) refers. We think not. The purposes to
which the rule is typically put support the conclusion that
the appropriate bases for supplemental pleadings are new
facts bearing on the relationship between the parties, rather
than merely changes in law governing those facts.
Michael v. Ghee, 498 F.3d 372, 386 (6th Cir. 2007)
(quoting United States v. Hicks, 283 F.3d 380,
385-86 (D.C.Cir. 2002)).
is asserting a new claim for relief in his motion to
supplement. Hence, Petitioner is not seeking to supplement
his timely-filed § 2255 motion with post-filing facts,
but instead to amend his § 2255 motion. The Court
therefore finds that Petitioner's motion is not a true
Rule 15(d) motion to supplement his collateral review
petition, but instead is a motion to amend under Rule 15(a).
Id. at 386 (instructing that “[a] Rule 15(a)
motion for leave to amend the complaint, not a Rule 15(d)
motion to supplement the pleading, is the appropriate
mechanism through which a party may assert additional claims
Motion to Amend
federal prisoner has one year in which to file a § 2255
motion, including any amendments to the motion. Mayle v.
Felix, 545 U.S. 644, 654 (2005) (citing to 28 U.S.C.
§ 2255, ¶ 6 (now § 2255(f)) as providing a
“one-year limitation period in which to file a motion
to vacate a federal conviction”); Howard v. United
States, 533 F.3d 472, 475 (6th Cir. 2008) (“Any
attempt to raise a new claim for relief in a Rule 15 motion
to amend pleadings is subject to AEDPA's one-year statute
of limitations.”). The one-year period commences on one
of four triggering dates. 28 U.S.C. § 2255(f)(1)-(4).
One and possibly two of those dates are pertinent in the
determination as to whether Petitioner's proposed new
claim is outside the one-year period set forth in §
2255(f)(1) and § 2255(f)(3).
Section 2255 (f)(1)
triggering date in the first subsection of § 2255 is the
date that a conviction becomes final. 28 U.S.C. §
2255(f)(1). As observed earlier in the Opinion, Petitioner
did not file a direct appeal from his October 21, 2015,
judgment of conviction. Therefore, Petitioner's
conviction became final on November 5, 2015, upon the lapse
of the 14-day period in which he could have filed a notice of
appeal (October 22, 2015 14 days = November 5, 2015).
See Fed. R. App. P. 4(b)(1)(A);
Sanchez-Castellano v. United States, 358 F.3d 424,
428 (6th Cir. 2004) (holding that “the judgment becomes
final upon the expiration of the period in which the
defendant could have appealed to the court of appeals, even
when no notice of appeal was filed”).
means that Petitioner had one year from November 5, 2015,
i.e., until November 5, 2016, to file a timely § 2255
motion and any amendments under subsection one. 28 U.S.C.
§ 2255(f) (“A 1-year period of limitation shall
apply to a motion under this section.”). Petitioner
filed his § 2255 motion on October 28, 2016, a week and
a day before his statute of limitation under §
2255(f)(1) was due to expire. Petitioner's § 2255
motion was timely, but his proposed amendment, filed in March
of 2017 [Doc. 5 at 7], was not timely under §
argues that Rule 15(c) entitles him to amend his § 2255
motion based on the decision in Beckles v. United
States, 137 S.Ct. 886 (2017) [Id. at 3]. Rule
15(c) is the provision in the Federal Rules of Civil
Procedure that governs amendments; that rule allows
amendments that, under certain criteria, relate back to the
date of the original pleading. Fed.R.Civ.P. 15(c)(1).
ineffective-assistance claim raised in Petitioner's
timely filed § 2255 motion was that counsel failed to
use the Johnson holding, i.e., that the ACCA's
residual clause was void as vague, to launch a
void-for-vagueness attack on Petitioner's career offender
designation under USSG 4B1.1 [Doc. 1 at 6]. The proposed
ineffective-assistance claim in Petitioner's motion to
amend is that counsel failed to object to his career-offender
classification because his prior Tennessee conviction for
possession of .5 grams or ...