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
RICHARD W. STORY, District Judge.
Movant, a federal prisoner, has filed a Motion to Amend ("Motion"), seeking to amend his June 1998 motion to vacate, 28 U.S.C. § 2255, to claim that in denying his § 2255 motion, this Court failed to address both prongs of ground one of that motion. (Doc. 101). The Magistrate Judge's Final Report and Recommendation ("Report") recommends denying the Motion as a successive § 2255 motion, filed without leave from the Eleventh Circuit. (Doc. 103). Movant objects. (Doc. 105).
Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72, the Court has conducted a de novo review of those portions of the Report to which Movant objects, and has reviewed the remainder of the Report for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
I. The Report
Movant was convicted in 1995 on charges of armed bank robbery and related crimes, and he received a 720-month term of imprisonment. (Report at 1-2). The Report notes the following procedural history:
Movant filed his original § 2255 motion in June 1998. After it was denied..., he sought leave from the Eleventh Circuit to file a second or successive § 2255 motion, which that court denied in January 2005. 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."
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." 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."...
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." 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. 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 2-3 (citations omitted; formatting altered); see id. at 4 ("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.")).
The Report recommends dismissal of Movant's Motion to Amend because it "is an attempt to raise a new substantive claim challenging his judgment of conviction or, alternatively, an attempt to relitigate an old claim. Either way, Movant must first obtain leave from the Eleventh Circuit to do so. But there is no indication in the record that he has obtained the required authorization to file a second or successive § 2255 motion." ( Id. at 6).
II. Movant's Objections
Movant objects that the Report mischaracterizes his 2004 motion seeking leave from the Eleventh Circuit to file a successive § 2255 motion. (Doc. 105 at 1-2). He asserts that he did not raise in that motion a new claim based on newly discovered evidence, but rather he was attempting to revive a "claim [that] originated in ground one of [his] timely filed 2255 motion in 1998." ( Id. at 2). Movant states that the Eleventh Circuit rejected his 2004 motion because he "was seeking [his] resentencing, rather than [claiming that he is] actually innocent of the crime." ( Id. ).
Movant now asserts not that he is actually innocent of his crimes of conviction, but rather that he is "actually innocent" of rejecting a 17-year plea offer from the government. ( Id. ). He asserts that he can show that he was in state prison between September 21 and November 21, 1994, and he "did not know federal plea negotiations were commenced and concluded with submissions to the District Court" stating that he rejected the offer. ( Id. ). He contends:
I am actually innocent of such decisions allegedly made by me. I had already alleged in my 2255 motion, inside ground one, that my trial counsel forced my case to trial, without obtaining a plea offer, ' [which] was my attempt to demonstrate actual innocence between September 21, 1994 and ...