United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT.
the Court are Petitioner's Appeal of the Magistrate Judge
Decision (Doc. 457), Motion to Stay Proceedings Related to
the Report and Recommendation (Doc. 458), and Motion to Stay
all Proceedings (Doc. 459). For the following reasons, the
Magistrate Judge's ruling is AFFIRMED
and Petitioner's motions to stay are
DENIED. To the extent that Petitioner wishes
to file any objections to the report and recommendation,
Petitioner will have 14 days from the date
of this order.
7, 2019, the Magistrate Judge denied several of
Petitioner's motions. (Doc. 455.) These motions included
Petitioner's (1) Motion to Amend (Doc. 411), (2) Motion
to Request Court's Intervention to Provide Grand Jury
Transcript (Doc. 413), (3} Motion for Brady Materials (Doc.
424), (4) Motion for Grand Jury Transcript and Stay (Doc.
429), (5) Motion to Compel (Doc. 437), (6) Motion for Summary
Judgment (Doc. 441), (7) Motion to Admit Exhibits (Doc. 447),
(8) Motion to Expedite (Doc. 452), and (9) Motion for Default
Judgment or in the Alternative Motion to Compel (Doc. 453).
On June 24, 2019, Petitioner filed an appeal of the
Magistrate Judge's order to this Court. (Doc. 457.)
reviewing the Magistrate Judge's rulings on appeal for
non-dispositive matters, this Court must "modify or set
aside any part of the order that is clearly erroneous or is
contrary to law." Fed.R.Civ.P. 72. This Court has
thoroughly reviewed Petitioner's arguments on appeal and
finds that the Magistrate Judge properly considered and
rejected many of those same arguments. The Court does not
find that any part of the Magistrate Judge's order was
clearly erroneous or contrary to law. Because this Court
finds that the Magistrate Judge's order is responsive to
many of the arguments Petitioner now raises and is not
clearly erroneous or contrary to law, this Court will not
specifically address many of Petitioner's arguments on
appeal. The Court, however, will address Petitioner's
arguments that the Magistrate Judge improperly denied his
Motion to Amend by finding that his new claims were barred by
the one-year statute of limitations provided in the
Anti-Terrorism and Effective Death Penalty Act, § 28
U.S.C. § 2255 (f), ("AEDPA") .
initial Motion to Set Aside Judgment under 28 U.S.C. §
2255 (Doc. 401} and Amended Motion to Set Aside Judgment
(Doc. 403) were filed by his attorney Kent Williams. After a
breakdown in the attorney-client relationship, Petitioner
terminated his relationship with Mr. Williams and proceeded
to file a motion to amend on October 10, 2017. (Doc. 411.) In
his motion, Petitioner seeks to add additional claims to his
original petitions filed on his behalf by his former
review, the Magistrate Judge found that Petitioner's new
claims were time-barred because they were not filed within
AEDPA's one-year statute of limitations. (Doc. 455 at
2-5.) The Magistrate Judge concluded that Petitioner's
claims were untimely because these claims did not
"relate back" to the timely filed claims raised in
Petitioner's initial petition. (Id.)
Accordingly, the Magistrate Judge denied Petitioner's
request to amend. (Id.)
appeal, Petitioner now challenges the Magistrate Judge's
findings and argues that this Court should allow him to amend
his complaint for several reasons. (Doc. 457.) First,
Petitioner contends that he should be permitted to freely
amend his petition and that there should be no requirement
that his claims relate back to his timely filed petition.
(Id. at 7-8.) Next, Petitioner asserts that this
Court should use equitable tolling to permit Petitioner to
file his new claims despite any applicable statute of
limitations. (Id. at 8-9.) Finally, Petitioner
argues that the Court should allow his newly filed claims
because these claims amount to an actual innocence claim that
should not be time-barred. (Id. at 10-11.) After
careful review, however, the Court cannot agree with
first challenge to the Magistrate Judge's ruling that his
new claims are untimely, Petitioner asserts that the
Magistrate Judge improperly applied Federal Rule of Civil
Procedure 15(c) to find that his claims were untimely because
they do not relate back to his timely filed petition.
(Id. at 7-8.) Petitioner asserts that "the
'relate back' [rule] would be contradictory and
counter intuitive" because under Rule 15(a) leave to
amend is given freely so that cases may be properly decided
on their merits. (Id. at 7.) Although Petitioner is
correct that the ability to amend under Federal Rule of Civil
Procedure 15(a) is generally given freely, "[w]hether a
petition can be amended under Rule 15(a) however, either as
of right, with consent of the court, or with the consent of
the parties, does not answer the question of the date that
those claims are considered to have been made for limitations
purposes." Pruitt v. United States, 274 F.3d
1315, 1318 (11th Cir. 2001). Instead, Federal Rule of Civil
Procedure 15(c) provides the "mechanism by which an
amendment to a pleading under Rule 15(a) may be considered to
have been filed as of the date of filing the original
pleading" and this rule requires that the new claims
relate back to those claims that were timely filed.
case, the Magistrate Judge properly found that
Petitioner's new claims do not relate back to the claims
initially raised in Petitioner's timely filed petition.
It is well settled that under Federal Rule 15(c), "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." Davenport v.
United States, 217 F.3d 1341, 1346 (11th Cir. 2000). In
this case, Petitioner's new claims are not factually
related to the claims initially filed by his attorney.
Accordingly, Petitioner's claims do not relate back to
that timely filing and are time-barred. See, e.g.,
Id. (applying Federal Rule of Civil Procedure 15(c)
to determine that "three new claims in [the
petitioner's] amended § 2255 motion do not relate
back to the date of his timely filed § 2255 motion"
and were barred under AEDPA).
Petitioner argues that this Court should find that his claims
are not time-barred because this Court should allow equitable
tolling of the one-year filing deadline in AEDPA. (Doc. 457
at 8-9.} Petitioner contends that he diligently pleaded with
his attorney to file additional claims in his initial habeas
petition and the failure of his attorney to file those claims
warrants equitable tolling of the statute of limitations.
order to establish that equitable tolling is warranted, a
petitioner must "show Ml) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely
filing." Holland v. Florida, 560 U.S. 631, 649,
130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct.
1807, 1818, 161 L.Ed.2d 669 (2005}}. The petitioner bears the
burden of proving his entitlement to equitable tolling.
San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.
2011). However, equitable tolling is applied sparingly,
Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000),
and is available "only in truly extraordinary
circumstances," Johnson v. United States, 340
F.3d 1219, 1226 (11th Cir. 2003). In the Eleventh Circuit,
"[e]quitable tolling based on counsel's failure to
satisfy the AEDPA's statute of limitations is available
only for serious instances of attorney misconduct."
Thomas v. Att'y Gen., 795 F.3d 1286, 1291 (11th
Cir. 2015) (internal citations and quotation marks omitted).
case, Petitioner has failed to establish that he is entitled
to equitable tolling of the statute of limitations. As the
record shows, Petitioner's attorney properly filed a
petition within the one-year period provided in AEDPA. (Doc.
401.) Although Petitioner quarrels with his attorney's
decision to file some claims at the exclusion of others, this
disagreement does not rise to the extraordinary circumstances
which warrant equitable tolling of the statute of
limitations. See Maples v. Thomas, 565 U.S. 266,
280-81, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012)
("[B]ecause the attorney is the prisoner's agent,
and under "well-settled" agency law, the principal
bears the risk of his agent's negligent conduct."
(citing Coleman v. Thompson, 501 U.S. 722, 753, 111
S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991))). As
Petitioner's agent, Petitioner's attorney was
permitted to make tactical decisions based on the
attorney's knowledge of the law. The decision by
Petitioner's counsel not to raise certain claims does not
warrant equitable tolling to permit Petitioner the
opportunity to amend his complaint.
Petitioner asserts that his claims cannot be time-barred
because he is asserting a claim that he is actually innocent.
It is well established that "a credible showing of
actual innocence may allow a prisoner to pursue his
constitutional claims ... on the merits notwithstanding the
existence of a procedural bar to relief. McQuiggin v.
Perkins, 569 U.S. 383, 392, 133 S.Ct. 1924, 1931, 185
L.Ed.2d 1019 (2013). However, "actual innocence gateway
pleas are rare: "[A] petitioner does not meet the
threshold requirement unless he persuades the district court
that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him ...