United States District Court, S.D. Georgia, Savannah Division
convicted as a felon-in-possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Latwon
Mosby seeks 28 U.S.C. § 2255 relief. Doc. 68 & 69
(arguing ineffective assistance of counsel and raising a
claim that his sentence was improperly enhanced per
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015). The undersigned recommended his motion be
dismissed on the merits, and that a Certificate of
Appealability be denied. Doc. 72. In lieu of filing Fed. R
Civ. P. 72(b)(2) Objections to the Report and Recommendation
(R&R), Mosby “concur[red] with the
Magistrate” that the motion was meritless,
“withdr[ew]” his motion, and informed the Court
that he would like to amend it to give him his “last
bite of the habeas writ right.” Doc. 76.
§ 2255 motion must be filed within a year of “the
date on which the judgment of the conviction becomes
final.” 28 U.S.C. § 2255(f)(1). Here, the Eleventh
Circuit confirmed Mosby's sentence on November 3, 2015
(see United States v. Mosby, 630 F.App'x 961,
962-63 (11th Cir. 2015), so his conviction became
“final” 90 days later on February 1, 2016. His
§ 2255 motion therefore had to be filed by no later than
February 1, 2017. His filed his original motion on November
14, 2016. Doc. 68. His motion to amend, adding entirely new
claims, was not signature-filed until May 10, 2017. Doc. 77.
otherwise untimely amendment may ‘relate back' to a
timely-filed claim pursuant to Fed.R.Civ.P. 15(c). See
Mayle v. Felix, 545 U.S. 644, 664 (2005); Farris v.
United States, 333 F.3d 1211, 1215 (11th Cir. 2003);
see also United States v. Pittman, 209 F.3d 314, 317
(4th Cir. 2000) (although the Rules Governing Section 2255
does not address the procedure for amending motions, courts
have typically applied Federal Rule of Civil Procedure 15).
movant 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. Burbage,
280 F.App'x 777, 782 (10th Cir. 2008); cf.
McCleskey 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.”) (cite 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).
motion to amend, Mosby newly contends that (1) the Government
breached the plea agreement; (2) the Sentencing Guidelines
are illegal; and (3) his counsel was deficient for allowing
his constitutional rights to be violated. Doc. 77. These, of
course, do not arise from the same underlying facts as the
original, timely filed § 2255 motion -- his original
claims turn on the application of Johnson, 135 S.Ct.
2551, to his Sentencing Guidelines-based conviction, plus
counsel's ineffectiveness in preparing and arguing a
motion to suppress. Compare docs. 68 & 69
(motion filed November 2016) with doc. 77 (motion
filed May 2017). Mosby is merely attempting to raise new
theories of relief after receiving notice (and conceding)
that his current claims are meritless. See Andrx Pharms.,
Inc., 421 F.3d at 1236-37. Thus, they cannot latch onto
the original motion's timeliness to sneak by the §
2255(f) one-year time bar. Davenport v. United
States, 217 F.3d 1341, 1344 (11th Cir. 2000) (“the
untimely claim must have more in common with the timely filed
claim than the mere fact that they arose out of the same
trial and sentencing proceedings.”).
Mosby find relief under any other exception to the one-year
time bar to present his untimely § 2555 claims.
See 28 U.S.C. § 2255(f)(2)-(4) (providing
exceptions for cases where the government impeded his ability
to file his amendment, new facts supporting the claims have
discovered, or the amendment is based upon a newly recognized
right made retroactively applicable by the Supreme Court).
Movant's motion to amend his § 2255 motion (doc. 77)
is therefore DENIED.
 The Court is citing to the criminal
docket in CR414-307 unless otherwise noted, and all page
numbers are those imprinted by the Court's docketing
 Even if timely, the claims are
nonetheless meritless. His allegation that the Government
breached the plea agreement by considering all of his past
conduct in determining his Guideline range is belied by the
agreement itself, which provided that the probation officer
would rely on “all of [Mosby]'s relevant conduct,
pursuant to U.S.S.G. § 1B1.2, not just the facts
underlying the particular Count to which [he] [was] pleading
guilty.” Doc. 46 at 2-3. Nor are the Guidelines
themselves somehow rendered “illegal” because the
Court permissibly examined defendant's relevant prior
conduct, including his “unindicted” and
“uncharged criminal conduct, ” in calculating his
sentence. Doc. 77; see United States v. Nyhuis, 8
F.3d 731, 744 (11th Cir.1993) (when deciding whether to apply
a sentencing enhancement, the district court may consider
evidence of unindicted conduct, conduct for which the
defendant has been acquitted, and conduct that goes beyond an
averment of the indictment).
Finally, counsel was not ineffective for
“allowing” Mosby's sentence to be increased
above the “statutory maximum” -- he was sentenced
to 95 months' imprisonment, well below the 120-month
maximum. Doc. 47. Nor did counsel fail to protect his
constitutional rights -- his Guideline range was permissibly
calculated. United States v. Nyhuis,211 F.3d 1340,