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Henderson v. United States

United States District Court, S.D. Georgia, Brunswick Division

July 23, 2018




         After 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.

         The 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.

         The Court addresses each of Henderson's Objections in turn.[1]


         On 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.

         Prior 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.

         On 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.

         Henderson 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.

         Henderson 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.


         I. Ineffective Assistance of Counsel Claim

         Henderson 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.

         A. Whether Henderson's Ineffective Assistance Claim is Time-Barred

         As the 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).[3] Accordingly, Henderson's ineffective assistance claim is likewise barred under Section 2255(f)(1).

         The Court recognizes Henderson's assertion that she is entitled to the limitations period of Section 2255(f)(3) based on the Johnson decision.[4] 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 basis).

         Instructively, 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. Id.

         Likewise, 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 untimeliness).

         Indeed, 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.[5]

         "An 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).[6] 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 ...

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