United States District Court, N.D. Georgia, Gainesville Division
TERRY J. COLLEY, BOP Reg. # XXXXX-XXX, Movant,
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 2:94-CR-7-RWS-JCF-1
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
J. CLAY FULLER, Magistrate Judge.
Movant, a federal prisoner currently confined at the United States Penitentiary in Atlanta, Georgia, seeks to amend his original 28 U.S.C. § 2255 motion, filed in June 1998, to challenge his judgment of conviction in this Court. (Doc. 101). Rule 4 of the Rules Governing Section 2255 Proceedings provides: "If it plainly appears from the [§ 2255] motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Because it plainly appears that Movant's motion to amend is in fact an impermissible second or successive § 2255 motion, the undersigned RECOMMENDS that it be DISMISSED.
"On January 9, 1995, [Movant] was found guilty of three counts of armed bank robbery, three counts of using a firearm during a violent crime, and one count of bank robbery.... [T]his Court sentenced [him] to 720 months of imprisonment. His appeal was denied on February 26, 1997." (Doc. 82 at 2 (citations omitted)).
A. Motion For Leave To File Second Or Successive § 2255 Motion
Movant filed his original § 2255 motion in June 1998. (Doc. 34). After it was denied (Doc. 41) and Movant was denied a certificate of appealability ("COA") (Docs. 44, 47), he sought leave from the Eleventh Circuit to file a second or successive § 2255 motion, which that court denied in January 2005 (Doc. 48). The court noted that one of Movant's claims, allegedly based on newly discovered evidence, was that "his counsel was ineffective by failing to inform him that the government had offered him a plea bargain. [Movant] claims that he discovered this fact in 2004 when he obtained a copy of a motion for continuance which his attorney filed in order to pursue plea negotiations." ( Id. at 2).
B. First Motion To Amend Movant's § 2255 Motion
In October 2007, Movant moved to amend his § 2255 motion because his "right to effective assistance of counsel was violated when counsel failed to inform [him] of a plea offer made in 1994 by the government prior to trial." (Doc. 49 at 1). This Court denied that motion as "simply an effort to thwart the requirement of [28 U.S.C. §] 2244 that a defendant must get permission from the Court of Appeals before filing a successive section 2255 motion." (Doc. 53 at 2 (denying Movant's "motion to amend his earlier section 2255 motion and his motion that this court apply the relation back doctrine" under FED. R. CIV. P. 15(c))).
C. Federal Rule of Civil Procedure 60(b)(6) Motion
In February 2012, Movant filed a FED. R. CIV. P. 60(b)(6) motion, asking the Court to construe his original ground one § 2255 claim as a claim that "but for counsel's deficient performance during plea negotiations[, ] the outcome of the proceedings would have been different and [he] would have accepted a plea agreement by the government and pled guilty in this case." (Doc. 76 at 8). Movant argued that the Court had misconstrued his original ground one claim as alleging that he was incompetent to stand trial, not as alleging, as it did, ineffective assistance of counsel for not allowing him to accept the government's plea offer, which he would have done. ( Id. at 6). Movant characterized this Court's failure to address the merits of this aspect of his ground one claim as a "defect" in his original § 2255 proceedings that is amenable to correction via a Rule 60(b)(6) motion. ( Id. at 5, 10, 12).
The government responded to Movant's Rule 60(b)(6) motion by noting the following background:
In his first § 2255 motion, [Movant] argued that his trial counsel was ineffective because he failed to request a psychological evaluation prior to trial in order to determine [Movant's] competency. (Doc. 34 at 1). [He] makes the same argument in [his] Rule 60(b)(6) motion. (Doc. 76 at 5). In the original [§ 2255 motion, he] based this claim on both a letter he had written to counsel that alleged he had "psychological problems connect[ed] to heavy crack' cocaine use and alcohol abuse, " and [his] own statements that he did not understand the proceedings. (Doc. 34 at 1). [He] claimed that if his counsel had requested a psychological evaluation, the evaluation would have shown that [he] was incapable of understanding the charges against him, and that if [he] had understood the charges, he would have pleaded guilty instead of going to trial. ( Id. at 2). In response to [that] argument, this Court held that "[o]ne self-serving statement absent any other evidence in support of a claim for incompetency is not sufficient to create a real, substantial, and legitimate doubt as to a defendant's mental capacity, " and found that counsel was not ineffective. (Doc. 41 at 5).
(Doc. 82 at 3-4 (footnote omitted)). This Court dismissed Movant's Rule 60(b)(6) motion for lack of jurisdiction because it was in effect a second or successive § 2255 motion filed without obtaining leave from the Eleventh Circuit to do so. (Doc. 85 at 1 ("On all points, the court agrees with the government and dismisses [Movant's] ...