United States District Court, S.D. Georgia, Augusta Division
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's Report and
Recommendation ("R&R"), to which objections
have been filed. (Doc. no. 11.) Concurrent with his
objections, Petitioner also moved to stay the proceedings
pending the Supreme Court's decision in Sessions v.
Dimaya, No. 15-1498. (Doc. no. 12.) Then, Petitioner
filed a Motion to Amend his § 2255 motion on April 19,
2017. (Doc. no. 15.) The Court will address Petitioner's
objections and motions in turn.
MOTION TO AMEND
seeks to amend his § 2255 motion to add claims, that in
light of the Supreme Court's decision in Dean v.
United States, 137 S.Ct. 1170 (2017), that (1) his
"plea was not entered into knowingly and
voluntarily" and (2) "the District Court would have
sentence [sic] [Petitioner] to a lesser term of imprisonment
if it would have known its authority was discretionary".
(Doc. no. 15, p. 2.) Petitioner also seeks to add the claim
raised in his motion to stay that "the 924(c) counts
should be vacated and dismissed because Title 18 U.S.C.
Section 1951 is not a crime of violence as that term is
defined under Title 18 U.S.C. Section 16." (Id; see doc.
Federal Rules of Civil Procedure are applicable to
proceedings for habeas corpus "to the extent that the
practice in those proceedings: (A) is not specified in a
federal statute, the Rules Governing 2254 Cases, or the Rules
Governing Section 2255 Cases; and (B) has previously
conformed to the practice in civil actions."
Fed.R.Civ.P. 81(a)(4). Similarly, Rule 12 of the Rules
Governing § 2255 Proceedings provides: "The Federal
Rules of Civil Procedure . . ., to the extent that they are
not inconsistent with any statutory provisions or these
rules, may be applied to a proceeding under these
rules." Furthermore, both the Supreme Court and the
Eleventh Circuit have held Federal Rule of Civil Procedure 15
applicable to requests to amend § 2255 motions. See
Mavle v. Felix. 545 U.S. 644, 654-55 (2005);
Pruitt v. United States. 274 F.3d 1315, 1317-19
(11th Cir. 2001). Thus, the Court will apply a traditional
Rule 15 analysis to Petitioner's motion to amend.
Rule 15(a)(1)(A), a party may amend its pleading once as a
matter of course within twenty-one days after service.
Petitioner's motions to amend-filed over one year after
the initial § 2255 motion, nearly one month after the
Magistrate Judge entered his R&R, and two days after the
standard fourteen-day deadline to file objections to the
R&R-do not fall under the rubric of Rule 15(a)(1)(A).
Thus, he can only amend with leave of court: "[A] party
may amend its pleading only with the opposing party's
written consent or the court's leave." Fed.R.Civ.P.
15(a)(2). The government does not consent, (doc. no. 16), and
thus the Court turns to its determination on whether
Petitioner's belated amendments should be allowed.
general rule, leave to amend under Fed.R.Civ.P. 15(a) is
given freely. Foman v. Davis. 371 U.S. 178, 182
(1962); Wedemever v. Pneudraulics. Inc.. 510
F.App'x 875, 878 (11th Cir. 2013). That said, leave to
amend is not guaranteed, and a trial court may deny such
leave "in the exercise of its inherent power to manage
the conduct of litigation before it." Reese v.
Herbert. 527 F.3d 1253, 1263 (11th Cir. 2008). "In
making this determination, a court should consider whether
there has been undue delay in filing, bad faith or dilatory
motives, prejudice to the opposing parties, and the futility
of the amendment." Saewitz v. Lexington Ins.
Co.. 133 F.App'x 695, 699 (11th Cir. 2005) (quoting
Foman. 371 U.S. at 182).
court has explained in the context of affirming the denial of
a request to amend in a § 2255 case, a petitioner who
"has had ample opportunity to present his case to the
Court . . . cannot simply raise new claims as they occur to
him." United States v. Burbaee. 280 F.App'x
777, 782 (10th Cir. 2008); cf McCleskev v. Zant. 499
U.S. 467, 485 (1991) ("Nothing in the traditions of
habeas corpus requires the federal courts to tolerate
needless, piecemeal litigation, or to entertain collateral
proceedings whose only purpose is to vex, harass, or
delay." (citation omitted)). This is particularly true
where a party has been put on notice that his claims are
meritless and then attempts to introduce new theories of
obtaining relief. See Andrx Pharms.. Inc. v. Elan Corp..
PLC. 421 F.3d 1227, 1236-37 (11th Cir. 2005). Moreover,
a motion to amend that seeks to add claims is properly denied
as futile when the claims are without merit or cannot form
the basis for cognizable relief. See Coventry First. LLC
v. McCarty. 605 F.3d 865, 870 (11th Cir. 2010) (ruling
that futility includes proposed amendments that fail as a
matter of law).
forth in the R&R, Petitioner originally alleged
"that after Johnson. (1) his North Carolina
conviction for conspiracy to commit common law robbery is no
longer a valid ACCA predicate, and (2) his conviction for
Hobbs Act robbery (18 U.S.C. § 1951) no longer qualifies
as a 'crime of violence."' (Doc. no. 9, p. 4.)
He now seeks to raise new claims unrelated to his
Johnson claims and based on a completely different
Supreme Court decision. Because Petitioner is merely
attempting to concoct new theories of obtaining relief after
receiving notice that his current claims are meritless, the
Court DENIES his motion to amend (doc. no. 15). See Andrx
Pharms.. Inc., 421 F.3d atl236-37.
even if the Court were to consider the merits of the motion,
Petitioner is not entitled to relief, and thus, the motions
are also due to be denied for futility. In Dean, the
Supreme Court held a district court is not prohibited from
considering the impact of the mandatory minimum sentence
required under 18 U.S.C. § 924(c) in determining the
appropriate sentence for the underlying predicate offense.
Dean v. United States. 137 S.Ct. 1170, 1178 (2017).
In that case, the district court specifically concluded
"he was required to disregard [the defendant]'s
30-year mandatory minimum when determining the appropriate
sentences for [the defendant's other counts of
conviction." Id. at 1175.
however, this Court used no such language when considering
Petitioner's sentence for his Hobbs Act robbery (the
underlying predicate offense). See United States v.
Bryant. CR 105-110, doc. no. 21 (S.D. Ga. Apr. 13,
2016). Furthermore, even if this Court applied Dean
to Petitioner's sentencing, his total sentence would not
have changed. The Court ran Petitioner's 180-month
sentence for Hobbs Act robbery concurrent with the 180-month
mandatory minimum sentence required by the Armed Career
Criminal Act for his conviction for possession of a firearm.
(See doc. no. 17.) Dean would not have
allowed the Court to ignore the mandatory minimums on
Petitioner's ACCA felon-in-possession and § 924(c)
convictions. Therefore, even if he received the same sentence
for his Hobbs Act robbery count as the defendant in
Dean, he still would be serving 180 months for his
felon-in-possession and a consecutive 84 months for his
§ 924(c) conviction. (See id.) Thus, any claim
based on Dean is meritless and futile.
merits of Petitioner's third ground for amendment are
also meritless as addressed in Section II. infra.
MOTION TO STAY
argues the Court should stay the proceedings until the
Supreme Court decides Sessions v. Dimava.
(See doc. no. 11, p. 2; doc. no. 12.) However, in
Dimya, the narrow issue is whether the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015) applies to the residual clause, not the elements
clause, of the "crime of violence" definition in 18
U.S.C. § 16(b). See Dimava v. Lynch, 803 F.3d
1110, 1111 (9th Cir. 2015), cert, granted, 137 S.Ct.
31 (2016). Here, each of Petitioner's predicate offenses
qualifies under either the "serious drug offense
clause" or the "elements clause" of the Armed
Career Criminal Act ("ACCA"). (See doc. no. 9, pp.
8-10.) Therefore, even if in Dimya the Court were to
extend the rule in Johnson to 18 U.S.C. §
16(b), it would have no bearing on Petitioner's
conviction. Accordingly, the Court DENIES Petitioner's
Motion to Stay. (Doc. no. 12.)