United States District Court, S.D. Georgia, Brunswick Division
LISA GODBEY WOOD, JUDGE UNITED STATES DISTRICT COURT
an independent and de novo review of the entire
record, the undersigned concurs with the Magistrate
Judge's Report and Recommendation, dkt. no. 8, to which
Movant Linda Henderson ("Henderson") filed
Objections, dkt. no. 14.
Magistrate Judge correctly analyzed the claims Henderson set
forth in her Section 2255 Motion, and the Court need not
restate that analysis. However, in her Objections, Henderson
raises arguments that she did not advance before the
Magistrate Judge, and the Court will address those
contentions. Henderson asserts she did not file an appeal of
her conviction and sentence due to ineffective assistance of
counsel. Id. at p. 2. Henderson also asserts she is
entitled to the statute of limitations period of 28 U.S.C.
§ 2255(f) (3) based on the United States Supreme
Court's decision in Johnson v. United States,
576 U.S.__, 135 S.Ct. 2551 (2015). In the alternative,
Henderson mentions she is entitled to equitable tolling of
the statute of limitations period. Id. Additionally,
Henderson maintains she was erroneously assigned a two-point
enhancement under the United States Sentencing Guidelines.
Id. Henderson requests that the Court re-sentence
her to time served based on the rehabilitative steps she has
taken since the beginning of her incarceration. Id.
at p. 5.
Court addresses each of Henderson's Objections in
March 3, 2014, a grand jury for this District charged
Henderson in a two-defendant Indictment with: conspiracy to
possess with intent to distribute and to distribute fifty
grams or more of methamphetamine, in violation of 21 U.S.C.
§ 846 and 18 U.S.C. § 2 (Count One); possession
with intent to distribute five grams or more of
methamphetamine and the distribution of five grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2 (Counts Two and Four); and possession
of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (Count Three). Crim.
Dkt. No. 1. Henderson and her trial counsel were able to
negotiate a plea agreement with the Government whereby
Henderson agreed to plead guilty to the lesser included
offense of Count One of the Indictment in exchange for the
Government moving to dismiss the remaining counts. Crim. Dkt.
No. 55. On June 12, 2014, Henderson appeared before the Court
for a change of plea, or Rule 11, hearing. Crim. Dkt. No. 54.
to Henderson's sentencing hearing, United States
Probation Officer Scot Riggs prepared a Pre-Sentence
Investigation report ("PSI"). Probation Officer
Riggs detailed Henderson's offense conduct and criminal
history and calculated Henderson's statutory penalties,
as well as her advisory Guidelines range. Pertinently, when
calculating Henderson's offense level, Probation Officer
Riggs recommended a two-level enhancement under U.S.S.G
§ 2D1.1(b)(1) because Henderson possessed several
firearms during the charged offense. PSI, ¶ 33. When
describing Henderson's offense conduct, Probation Officer
Riggs detailed her possession of firearms while dealing
drugs, including her own admission that firearms were present
during drug transactions with various individuals.
Id. at ¶¶ 7, 11, 14, 19, 22, 25, & 30.
Henderson's total offense level of 35, combined with a
criminal history category of I, resulted in a recommended
Guidelines sentencing range of 168 to 210 months.
Id. at ¶ 70.
December 1, 2014, Henderson appeared before the Court for a
sentencing hearing. Crim. Dkt. No. 67. The Court concurred
with and adopted the factual statements and conclusions in
the PSI and found Henderson faced a Guidelines range of 168
to 210 months' imprisonment. Id. However, the
Court granted the Government's motion for a downward
departure pursuant to U.S.S.G. § 5K. Id. Thus,
the Court sentenced Henderson to 132 months' imprisonment
as to Count One. Crim. Dkt. No. 68. Pursuant to the plea
agreement, the Court dismissed the remaining counts of the
Indictment against Henderson. Id.
did not file a direct appeal of her sentence. However, on
November 2, 2015, Henderson filed a motion to reduce her
sentence due to retroactive changes to the Guidelines. Crim.
Dkt. No. 75. The Court denied this motion, explaining that
Henderson was sentenced based on the November 2014 version of
the Guidelines, which already incorporated the amendments she
relied upon in her motion. Crim. Dkt. No. 76.
then filed the instant Section 2255 Motion. Crim. Dkt. No.
78. Therein, Henderson argued the Court must revisit her
sentence because the Supreme Court's decision in
Johnson invalidated the two-level enhancement she
received under Section 2Dl.l(b)(1) of the Sentencing
Guidelines for possessing firearms during the instant
offense. Id. The Magistrate Judge determined
Henderson's Section 2255 Motion was filed untimely and,
even if her Motion had been filed in a timely manner,
Henderson failed to set forth a valid Johnson claim.
Dkt. No. 89. Henderson filed Objections to this Report and
Recommendation, to which the Court now turns.
Ineffective Assistance of Counsel Claim
did not aver in her original Motion that her counsel rendered
ineffective assistance, and it was only in her Objections
that she made such a claim. In her Section 2255 Motion,
Henderson merely asserted that she was "told" she
could not file an appeal because of the waiver provision
contained in her plea agreement. Dkt. No. 1, p. 12. However,
in her Objections, Henderson maintains her counsel rendered
ineffective assistance by failing to inform her she could
file an appeal, despite the presence of the appeal waiver in
her plea agreement. Dkt. No. 14, p. 2.
Whether Henderson's Ineffective Assistance Claim is
Magistrate Judge recognized, Henderson's conviction
became final on December 2, 2014, and she had until December
16, 2014, to file a notice of appeal. Dkt. No. 8, p. 5.
Henderson did not file a notice of appeal, and accordingly,
she had until December 16, 2015, to file a timely Section
2255 motion. Id. (citing 28 U.S.C. §
2255(f)(1)). Because Henderson did not execute her Section
2255 Motion until June 14, 2016, her original claims are
barred by the limitations period of Section
2255(f)(1). Accordingly, Henderson's ineffective
assistance claim is likewise barred under Section 2255(f)(1).
Court recognizes Henderson's assertion that she is
entitled to the limitations period of Section 2255(f)(3)
based on the Johnson decision. However, even if
Henderson made timely claims under Johnson, she
could not use those claims to open the door to other
time-barred claims that do not rely upon Johnson.
See Zack v. Tucker, 704 F.3d 917, 922-26 (11th Cir.
2013) (habeas limitations periods apply on a claim-by-claim
in Beeman v. United States, 871 F.3d 1215 (11th Cir.
2017), a Section 2255 movant challenged his sentence partly
based on Johnson and partly on other grounds. The
Eleventh Circuit found that, though the movant's
Johnson claims were timely under Section 2255(f)(3),
his claims based on principles and precedent other than
Johnson were not. Beeman, 871 F.3d at 1220.
Thus, the Court affirmed the dismissal of those claims.
regardless of the timeliness of Henderson's
Johnson claims, this Court must dismiss her claim of
ineffective assistance of counsel as being filed well outside
the statute of limitations period. See Jones v. United
States, No. 2:12-CR-9, 2018 WL 842172, at *4 (S.D. Ga.
Feb. 12, 2018), report and recommendation adopted,
2018 WL 1527891 (S.D. Ga. Mar. 28, 2018) (dismissing
ineffective assistance of counsel claims as untimely where
movant had brought timely Johnson claims);
Newell v. United States, No. 5:13-CR-9, 2018 WL
1146331, at *7 (S.D. Ga. Mar. 2, 2018), report and
recommendation adopted, 2018 WL 1972489 (S.D. Ga. Apr.
26, 2018) (denying motion to amend non-Johnson claims due to
Henderson's ineffective assistance of counsel claim is
even more untimely than the claims she asserted in her
original Section 2255 Motion. Henderson did not specify her
ineffective assistance of counsel claim until her Objections/
She signed her Objections on April 27, 2018, more than three
years and four months after her conviction became final. Dkt.
No. 14, p. 6. These additional claims do not relate back to
her original Section 2255 Motion.
amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or
defense that arose out of the conduct, transaction, or
occurrence set out-or attempted to be set out-in the original
pleading." Fed.R.Civ.P. 15(c)(1)(B). In order to
relate back, "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.
Instead, in order to relate back, the untimely claim must
have arisen from the same set of facts as the timely filed
claim, not from separate conduct or a separate occurrence in
both time and type." Davenport v. United
States, 217 F.3d 1341, 1344 (11th Cir. 2000). "The
critical issue in Rule 15(c) determinations is whether the
original complaint gave notice to the defendant of the claim
now being asserted." Moore v. Baker, 989 F.2d
1129, 1131 (11th Cir. 1993). "[W]hile Rule 15(c)
contemplates that parties may ...