Opinion
Civil No. 02-4757 ADM, Criminal No. 98-179(11) ADM/AJB.
February 26, 2003
Terry Louis, pro se.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner Terry Louis ("Petitioner") brings this matter before the undersigned United States District Judge on his Motion for Leave to File Supplemental Grounds for Habeas Corpus Relief [Docket No. 583] and his Motion to Vacate, Amend, or Alter Judgment [Docket No. 582]. In these related Motions, Petitioner seeks to vacate this Court's denial of his previous § 2255 Motion [Docket No. 575] and amend his habeas corpus pleadings to include a new ground for relief. A brief factual and procedural background of this matter is set forth in the February 4, 2003 Order [Docket No. 581] and is incorporated by reference for purposes of the present Motions.
Petitioner asserts that after filing his § 2255 motion, prison law clerks informed him of an additional argument in his favor and drafted and mailed a supplemental brief to amend the § 2255 petition. Shortly thereafter, Petitioner received a copy of the Court's Order of February 4, 2003, denying his Motion to Vacate, Set Aside or Correct Sentence. After determining his supplemental pleading did not reach the Court prior to its decision, Petitioner now moves to alter or amend the judgment, as provided in Federal Rule of Civil Procedure 59(e).
II. DISCUSSION
Petitioner argues he should be allowed to amend his original § 2255 petition pursuant to Rule 15 of the Federal Rules of Civil Procedure. His supplemental ground for contesting the length of his sentence is his assertion of an insufficient evidentiary basis for the determination that he agreed or could have reasonably foreseen that the powder cocaine he transported from California would be converted into crack cocaine in Minnesota. Therefore, he argues, his base offense level should have reflected one kilogram of cocaine powder instead of the nine ounces of crack cocaine for which he was held accountable. Petitioner requests the Court adjust his base offense level to account for only the powder cocaine and modify his sentence accordingly.
Federal Rule of Civil Procedure 15(a) provides in relevant part that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Rule 15 applies to § 2255 proceedings and permits amendment of these pleadings according to its terms. United States v. Craycraft, 167 F.3d 451, 457 n. 6 (8th Cir. 1999); see also, e.g., United States v. Hicks, 283 F.3d 381, 386 (D.C. Cir. 2002) (citing list of cases supporting application of Rule 15 to § 2255 motions). However, the law in many circuits allows a Rule 15(a) amendment after the entry of judgment only if the judgment has been altered or set-aside pursuant to a successful motion under Rule 59(e) or 60. Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996); see also Wilburn v. Pepsi-Cola Bottling Co., 492 F.2d 1288, 1290 (8th Cir. 1974) (stating that a post-dismissal Rule 15(a) motion to amend is "invoked by a proper motion under either Rule 59(e) . . . or 60(b)"). This rule appears particularly applicable in the context of Petitioner's case, in light of the statutory limitations on successive § 2255 submissions. See 28 U.S.C. § 2244, 2255; Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (permitting summary dismissal of successive collateral attacks styled as purported Rule 60(b) Motions as attempts to circumvent rules on second post-conviction motions).
Here, Petitioner acknowledges that his Rule 15 Motion was filed after the Court's denial of his initial § 2255 pleading and accordingly, also moves to vacate the denial under Rule 59(e). Citing the harsh strictures of the AEDPA and the interests of justice, Petitioner submits that his supplemental claim merits vacation of the § 2255 denial.
Though Petitioner's Motion invokes both Rules 59(e) and 60(b), because he is within the 10 day filing period prescribed by Rule 59(e), Rule 60(b) is inapplicable.
This argument is foreclosed by the Eighth Circuit's clear articulation that Rule 59(e) "cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to the entry of judgment." Innovative Home Health Care, Inc. v. P.T.-O.T. Assocs. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir. 1998) (internal citation omitted). Petitioner's sole basis for post-judgment relief is his theory that the Court did not have sufficient proof of his role in the conspiracy to hold him accountable for crack rather than powder cocaine. This assertion could have been presented in the initial § 2255 memorandum and cannot support vacating the judgment under Rule 59(e). See id.
Furthermore, even if the Court were to permit amendment of the pleadings at this tardy juncture, the supplemental argument would be barred by the one-year time limitation applicable to § 2255 litigation. See 28 U.S.C. § 2255. Petitioner's conviction became final October 1, 2001, with the denial of his petition for certiorari. Petitioner then had one year from this time to bring a § 2255 collateral attack. See id. The present Motion, filed February 14, 2003, is well beyond the expiration of this statute of limitations. Amendment would only be permitted, therefore, if the supplemental pleading could be said to relate back to the original § 2255 motion, within the meaning of Rule 15(c).
In fact, Petitioner's initial § 2255 Motion would also have been untimely, but for the benefit of the Court's treatment of that Motion as relating to Petitioner's earlier Rule 32 Motion [Docket No. 571], filed just within the one-year period. The two motions were handled jointly because the purported Rule 32 filing was in fact a challenge to the length of Petitioner's sentence and set forth virtually identical grounds and arguments as the subsequent, properly labeled, § 2255 motion. See Order of 2/4/03 at 1 n. 1 [Docket No. 581].
Petitioner's proposed amendment will relate back to the date of the original pleading only if the supplemental and the original claims arose out of the same conduct, transaction, or occurrence. Fed.R.Civ.P. 15(c)(2). Allegations of "distinctly separate" deficiencies of counsel as grounds for § 2255 relief do not arise out of the same occurrence. Craycraft, 167 F.3d at 457 (8th Cir. 1999). While a supplemental claim that amplifies or implicates the facts underlying the original claims will relate back, one that inserts a new legal theory based on a distinct set of facts will not. Hicks, 283 F.3d at 388-89.
In his original pleadings, Petitioner argued his criminal history calculation was erroneous, leading to an overstated criminal history score and an excessive sentence. He further asserted that his counsel's representation was ineffective for failure to raise this issue. Presently, Petitioner contends he was entitled to an evidentiary hearing prior to sentencing to determine whether or not he could be held responsible for the crack cocaine on which his base offense level was founded. These assertions relating to the type of drug and the level of Petitioner's participation in the conspiracy draw on distinctly different facts than his previous allegations of over-represented criminal history, despite mention of ineffective assistance of counsel in both pleadings. See Craycraft, 167 F.3d at 457. Accordingly, this new theory advanced by Petitioner does not relate back to his prior submissions and is therefore untimely as beyond the one-year limitation period for bringing § 2255 actions.
III. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion for Leave to File Supplemental Grounds for Habeas Corpus Relief [Docket No. 583] and Motion to Vacate, Amend, or Alter Judgment [Docket No. 582] are DENIED.