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Hill v. United States

United States District Court, N.D. Georgia, Gainesville Division

July 24, 2017

UNITED STATES OF AMERICA, Respondent. Civil Action No. 2:15-CV-23-RWS

          ORDER MOTION TO VACATE 28 U.S.C. § 2255


         Movant, while a federal prisoner, filed a counseled 28 U.S.C. § 2255 motion to vacate his sentence ("Motion") (Doc. 26) and a motion to amend (Doc. 53). The Final Report and Recommendation of Magistrate Judge J. Clay Fuller ("R&R") recommends denying both motions. (Doc. 58). Movant objects. (Doc. 60 ("Objs.")).

         In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "Parties filing objections to a magistrate s report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court. United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal quotation marks omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate [judge], " 28 U.S.C. § 636(b)(1), and "need only satisfy itself that there is no clear error on the face of the record" in order to accept the recommendation. Fed.R.Civ.P. 72, advisory committee note, 1983 Addition, Subdivision (b). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil Procedure, the Court has conducted a de novo review of those portions of the R&R to which Plaintiff objects and has reviewed the remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         Movant pled guilty to hiding assets from his bankruptcy estate, and on March 11, 2014, he received a 24-month sentence, based on this Court's conclusion that he had hidden $180, 000 in assets. He did not file a direct appeal. (R&R at 1-6).

         In his original Motion, he raises two claims of ineffective assistance of counsel, alleging that (1) his plea was involuntary due to counsel's deficient performance, and counsel refused to seek withdrawal of his plea upon his request; and (2) counsel performed deficiently at his sentencing hearing. (See Id. at 6-7 (quoting Motion at 4, 5)). Movant has withdrawn his sentencing claim (see Id. at 16-17), but on May 6, 2016, he sought to amend his Mofion, to add a claim that his counsel failed to file a notice of appeal upon his request (id. at 7-8).

         I. The Motion to Amend

         The Magistrate Judge has concluded that Movant may not take advantage of the relation back provision of FED. R. ClV. P. 15, and therefore recommends that the proposed amendment be dismissed as untimely under the one-year limitations period that applies here:

[T]here is no common core of operative facts linking Movant's original § 2255 claims - with respect to counsel's performance regarding the entry or possible withdrawal of Movant's guilty plea, and during sentencing - . ., and Movant's proposed amendment, otherwise untimely, with respect to counsel's alleged failure to file a notice of appeal in compliance with Movant's request after he had been sentenced.

(R&R at 13-14; see Id. at 10-13); see also McLean v. United States, No. 04-13534, 2005 U.S. App. LEXIS 19546, at *4-5 (11th Cir. Sept. 8, 2005) ("Relation back . . . is only allowable when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in both time and type from the originally raised episodes." (emphasis added) (citation and internal quotations omitted)).

         Movant objects that his appeal claim is part of the same transaction or occurrence as his plea and sentencing claims, but he relies for support for this proposition on the two-Justice dissent in the same Supreme Court case upon whose majority opinion the Magistrate Judge relies to demonstrate, convincingly, that Movant s proposed amendment concerns a matter that is not part of the same transaction or occurrence as either of his original two claims. (Objs. at 3 (citing Mayle v. Felix, 545 U.S. 644, 670-71 (2005) (Souter, J.. dissenting))); see R&Rat 10-13); see also Copper v. United States, 1:02-CR-0377-JEC-GGB-3, 2012 U.S. Dist. LEXIS 190115, at 12 (N.D.Ga. Oct. 17, 2012) ("[A] petitioner does not satisfy the Rule 15 relation back' standard merely by raising some type of ineffective assistance [claim; in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance." (internal quotations omitted)), adopted by 2014 U.S. Dist. LEXIS 58362 (N.D.Ga. Apr. 26, 2014); Harden v. United States, CV 310-064, 2011 U.S. Dist. LEXIS 98237, at 14 (S.D. Ga. July 29) ("As Petitioner points out, his first and second proposed claims from his motion to amend, like his original claim, are premised on the allegedly ineffective assistance of his trial counsel. [But] this similarity speaks only to whether the claims are of a similar type in terms of their legal basis, whereas, in addressing the issue of relation back, the key factor is whether the amended claims arise from the same underlying facts as the original claims." (internal quotations omitted)), adopted by 2011 U.S. Dist. LEXIS 98209 (S.D. Ga. Aug. 2, 2011).

         Movant notes that his original Motion was accompanied by his sworn Declaration, containing 55 numbered paragraphs, the last of which states, Immediately [after] the Court's imposition of sentence, I asked [counsel] if he would appeal the sentence. [Counsel] stated to me, in effect, that if I appealed, the Court would re-sentence me to an even greater period of imprisonment." (Objs. at 4, 5; see Doc. 26-2 at 11, Decl. ¶ 55). Movant argues that

the Court possessed ample discretion to consider [his] timely filed Declaration and averments in determining his alleged grounds to vacate or set aside his conviction. In view of these facts, granting [his] Motion to Amend was in the interest of justice, pursuant to Rule 15. The Report correctly notes the fact that, following the hearing, both [he] and the government briefed the issue of counsel's consultation with [him] regarding an appeal and counsel's failure to file an appeal.

(Objs. at 5-6; see Id. at 6 ("Through his Declaration attached to his Motion to Vacate, counsel s consultation with [him] regarding an appeal was part of the core of facts of [his] original claims, and the Court possessed discretion to consider the ground and should grant leave to amend the petition.")).

         Movant cites a Third Circuit case for the proposition that his "proposed additional claim related to counsel's effectiveness and therefore was not different in type from his original claims. (Odjs. at 7). Jb5ut m mat case, the Third Circuit stated that the facts undergirding [movant's] ineffective assistance claim differ in neither type nor time from those supporting his [timely] right-to-appeal claim: both concern the erroneous advice that [his] counsel provided about the filing deadline for the appeal. Hodge v. United States, 554 F.3d 372, 378 (3d Cir. 2009). Those similarities in time and type do not apply here unless the Court construes the single paragraph in Movant's Declaration to constitute a timely claim, to which his amendment could properly relate back. Movant argues that it does. (See Objs. at 3 (quoting Ciccotto v. United States, 613 Fed.Appx. 855, 859 (11th Cir. 2015) ("When the nature of the amended claim supports specifically the original claim, the facts there alleged implicate the original claim, even if the original claim contained insufficient facts to support it. That is, one may amend a claim to fill in facts missing from the original claim. (citations and internal quotations omitted) (quoting Dean v. United States, 278 F.3d 1218, 1222 (11th Cir. 2002)))).

         But, unlike here, the original pro se motion to vacate in Ciccotto contained an actual claim to which the untimely amended claim could relate back - "[l]ike the original claim, claim 11 [in the otherwise untimely amendment] asserts that [movant's] sentence was unduly harsh given the existence of various mitigating circumstances; that is, the nature of the amended claim supports specifically the original claim." Ciccotto, 613 Fed.Appx. at 859 (internal quotations omitted); but see Id. (denying relation back on other claims that movant did not raise in his original pro se motion to vacate the competency related claims in [movant's] amended motion do not relate back to [his] initial motion" because "[n]owhere in any of the four [original] grounds is there any suggestion that [he] was actually incompetent to stand trial or sufficiently close to incompetence such that an evaluation would be necessary").

         As noted above, in the counseled 28 U.S.C. § 2255 motion form that Movant filed, there is no reference to counsel's failure to file a notice of appeal. Nor is there any mention of such a claim in his counseled brief in support of his Motion, in which he sums up his grounds to vacate or set aside [his] plea and sentence" as follows:

[His] counsel was ineffective in advising [him] to enter a guilty plea, in failing to attempt to withdraw [his] guilty plea, and in failing to obtain exculpatory evidence in his case. But for counsel's deficiencies, [he' would not have pled guilty and would have elected to go to trial. [His' counsel was also ineffective at sentencing for failing to object to the Government s failure to prove the amount of loss attributable to [him] with reliable and specific evidence, for failing to object to the Court's failure to make factual findings regarding the amount of loss attributable to [him], and for failing to secure the testimony of important witnesses and other ...

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