United States District Court, N.D. Iowa, Western Division
ALLEN R. WILLIAMS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER REGARDING PETITIONER'S § 2255 MOTION
MARK W. BENNETT, District Judge.
This case is before me on petitioner Allen R. Williams's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Williams claims that his trial counsel provided him with ineffective assistance in a number of ways. The respondent denies that Williams is entitled to relief on his claims.
A. Criminal Proceedings
On August 19, 2010, an indictment was returned against Williams, and six codefendants, charging him with conspiracy to distribute 28 grams or more of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 (Count 1), distributing crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and abetting another in the distribution of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 18 U.S.C. § 2 (Count 3).
On December 14, 2010, a superseding indictment was returned against Williams, and five codefendants, charging him with conspiracy to distribute 50 grams or more of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 1), distributing crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Counts 2, 7, and 8), and distributing and aiding and abetting another in the distribution of crack cocaine, having previously been convicted of two felony drug offenses, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 18 U.S.C. § 2 (Count 3). On January 28, 2011, the prosecution moved to amend the superseding indictment to cure clerical errors in the conspiracy charge in Count 1. The prosecution's motion was unresisted by Williams and the three codefendants remaining in the case. That same day, the prosecution's motion was granted and Count 1 was amended to change the time frame of the alleged conspiracy to read "from about January 2010, and continuing through about August 2010, " to change the quantity of drugs alleged to read "28 grams or more, " and to change the related code section to read "21 U.S.C. § 841(b)(1)(B)."
Trial in this case commenced on February 9, 2011, with Williams being tried with codefendant Robert McNairy. On February 9, 2011, after all of the evidence had been submitted to the jury for deliberation, the jury sent a note to me at the end of the day requesting to replay recordings of admitted evidence the following day. I telephoned the attorneys regarding the note and had a preliminary discussion with them on their positions. The prosecution and McNairy's counsel agreed to permit the jury to replay the recordings while Williams's counsel objected to the replaying of recordings. No decision was made at that time. Instead, I scheduled a hearing on the issue for the following morning. At that hearing, on the morning of February 10, 2011, both Williams and his counsel were present. Williams's counsel objected to the jury being allowed to replay the audio and video recordings while the prosecution was in favor of permitting it. I ordered that a laptop computer be provided to the jury to allow the jurors to replay the recordings during their deliberations.
On February 10, 2011, the jury returned a verdict finding Williams guilty of the charged offenses. On May 20, 2011, Williams's counsel filed a motion for downward variance. The prosecution, in turn, filed a motion for upward departure on the ground that Williams's criminal history category substantially under represented the seriousness of Williams's criminal history. Williams appeared before me on May 27, 2011, for sentencing. I found that Williams qualified as a career offender based on his two prior felony drug trafficking convictions and that his total offense level was 37 with a criminal history category of VI for an advisory United States Sentencing Guideline range of 360 months to life. I denied both the prosecution's motion for upward departure and Williams's motion for downward variance. I sentenced Williams to 360 months imprisonment on each count with the sentences to run concurrent, and 8 years of supervised release on Count 1 and six years on the other counts, all to run concurrent. Williams appealed his conviction. On appeal, Williams contended there was insufficient evidence to sustain the jury's verdict. On March 5, 2012, the Eighth Circuit Court of Appeals denied Williams's appeal. See United States v. Williams , 456 Fed.App'x (8th Cir. 2012).
B. The Petitioner's § 2255 Motion
On March 1, 2013, Williams filed a pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion, Williams contends that his counsel provided him with ineffective assistance in failing: (1) to object to the prosecution's motion to amend the superseding indictment; (2) to request an informant instruction; (3) to object to his absence during the replaying of audio and video evidence by the jury; (4) to object to my allowing the court's "IT" personnel to go into the jury room without Williams being present; (5) for allowing video and audio tapes to go into the jury room; (6) to seek to strike surplusage language from the superseding indictment; (7) to object to a jury instruction that constructively amended the superseding indictment; (8) to object to co-conspirator hearsay testimony; (9) to object to portions of my statement of the case concerning Counts 5 and 6; (10) to have laboratory receipts removed from the laboratory results prior to that evidence being given to the jury; (11) to argue claims on appeal; (12) to advise Williams of his rights to speedy trial; and (13) to address the crack/powder cocaine difference.
After respondent filed its answer, I set a briefing schedule and counsel was appointed to represent Williams on his § 2255 motion. In his brief, Williams addresses the merits of only his third and fourth claims. Williams, however, also requests I review and rule on his first, second, and fifth claims. Williams does not address his other eight claims nor does he request that I review them. I consider these eight additional claims of ineffective assistance of counsel waived. Respondent resists each of the grounds that Williams still seeks relief on. Williams, in turn, filed a timely reply brief.
On February 21, 2014, after the case was fully submitted, Williams moved pro se to amend his § 2255 motion in order to raise two additional claims of ineffective assistance of counsel: (1) counsel's failure to object to the case agent sitting at the prosecution table during trial, and (2) counsel's failure to file motions to dismiss the indictment and superseding indictment because the drug quantity was not alleged in Counts 2, 3, 7, and 8. Respondent resists Williams's motion for leave to amend, arguing that the amended claims are untimely. In response, Williams filed an untimely reply brief without leave to do so. I will take up Williams's motion to amend before addressing the merits of his § 2255 motion.
II. LEGAL ANALYSIS
A. Motion To Amend
Section 2255 proceedings are civil in nature and, therefore, governed by the Federal Rules of Civil Procedure, see, e.g., Mandacina v. United States , 328 F.3d 995, 1000 & n.3 (8th Cir. 2003), including Rule 15 regarding amendments. I have previously stated that "the timeliness, or lack thereof, of [a § 2255 petitioner's amended claims] is interdependent upon the starting date for the one-year limitation." United States v. Ruiz-Ahumada , No. CR02-4054-MWB, 2006 WL 3050807, *2 (N.D. Iowa Oct. 24, 2006); see also Johnson v. United States , 860 F.Supp.2d 663, 711 (N.D. Iowa 2012). Respondent asserts, and Williams does not dispute, that the starting date for the one-year statute of limitations for his § 2255 motion was June 3, 2012, when his time to seek review in the United States Supreme Court expired, and that the statute of limitations expired on June 3, 2013. While Williams's original § 2255 motion, filed on March 1, 2013, was filed within this one-year limitations period, his proposed amendment to his § 2255 motion was not.
I have previously noted that "courts, including the Eighth Circuit Court of Appeals, have recognized that amendments pursuant to Rules 15(a) or 15(b) in § 2255 cases, offered after the expiration of the § 2255 statute of limitations, are still subject to the relation back' requirements of Rule 15(c)." Johnson , 860 F.Supp.2d at 711. More specifically, I have previously observed that "an untimely amendment to a § 2255 motion which, by way of additional facts, clarifies or amplifies a claim or theory in the original motion may, in the District Court's discretion, relate back to the date of the original motion if and only if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case.'" Ruiz-Ahumada , 2006 WL 3050807 at *2 (emphasis added) (quoting United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10th Cir. 2000)). Thus, Williams's proposed amendment to his § 2255 motion is only timely if the "new" claims asserted in it "relate back" to the filing of Williams's original § 2255 motion. Id. ; FED. R. CIV. P. 15(c).
The Eighth Circuit Court of Appeals has explained the requirements for "relation back, " as follows:
Claims made in an amended motion relate back to the original motion when the amendment asserts a claim that arose out of the same "conduct, transaction, or occurrence set out... in the original" motion. Fed.R.Civ.P. 15(c)(1)(B). To arise out of the same conduct, transaction, or occurrence, the claims must be "tied to a common core of operative facts." Mayle v. Felix , 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (applying Rule 15(c) to a 28 U.S.C. § 2254 petition). An amended motion may raise new legal theories only if the new claims relate back to the original motion by "aris[ing] out of the same set of facts as [the] original claims." Mandacina , 328 F.3d at 1000. The facts alleged must be specific enough to put the opposing party on notice of the factual basis for the claim. See [United States v.] Hernandez , 436 F.3d [851, ] 858 [(8th Cir.), cert. denied , 547 U.S. 1172 (2006)] (explaining the rationale for Rule 15(c)). Thus, it is not enough that both an original motion and an amended motion allege ineffective assistance of counsel during a trial. See United States v. Ciampi , 419 F.3d 20, 24 (1st Cir.2005) ("[A] petitioner does not satisfy the Rule 15 relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance."), cert. denied , 547 U.S. 1217 , 126 S.Ct. 2906, 165 L.Ed.2d 936 (2006). The allegations of ineffective assistance "must be of the same time and type' as those in the original motion, such that they arise from the same core set of operative facts." Hernandez , 436 F.3d at 857 (quoting Mayle , 545 U.S. at 650, 657, 660, 125 S.Ct. 2562 and holding that ineffective assistance claim alleging that counsel inadequately cross-examined two witnesses did not relate back to a claim for ineffective assistance related to counsel's failure to object to the admission of evidence lacking a proper foundation); see also Mandacina , 328 F.3d at 1002 (concluding that counsel's alleged failure to investigate the police report of an interview naming potential suspects was not a similar type of error as allegedly failing to discover exculpatory footprints during counsel's investigation of the case); United States v. Craycraft , 167 F.3d 451, 457 (8th Cir.1999) (failure to file an appeal is not the same type of error as failure to seek a downward departure or challenge the drug type at sentencing).
Dodd v. United States , 614 F.3d 512, 515 (8th Cir. 2010); see also Johnson , 860 F.Supp.2d at 713-14 (quoting this passage from Dodd ).
The "new" "ineffective assistance" claims in Williams's proposed amendment to his § 2255 motion plainly do not "relate back" to the claims in his § 2255 motion under this standard, because there is no "common core" of facts between the "new" and "old" claims. Dodd , F.3d at 515. It is not enough that Williams originally asserted "ineffective assistance" claims, and that the "new" claims are also "ineffective assistance" claims. Id. Williams's "new" allegations of ineffective assistance are not "of the same time and type' as those in the original motion." Id. (internal quotation marks and citations omitted). None of Williams's original claims or the limited facts alleged in support of them hint at the factual basis for Williams's new proposed claims of ineffective assistance of counsel. Consequently, Williams's motion to amend is denied.
B. Standards For § 2255 Motion
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground  that the sentence was imposed in violation of the Constitution or laws of the United States, or  that the court was without jurisdiction to impose such sentence, or  that the sentence was in excess of the maximum authorized by law, or  is otherwise subject to ...