Opinion
4:15-CR-00017-CDL-MSH 4:20-CV-00010-CDL
06-02-2022
DARIUS HARBIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Respondent's motion to dismiss (ECF No. 103) Petitioner's amended motion to vacate (ECF No. 100) pursuant to 18 U.S.C. § 2255. For the reasons explained below, it is recommended that Respondent's motion be granted, and Petitioner's amended motion be dismissed.
BACKGROUND
On March 12, 2015, a federal grand jury charged Petitioner with the following four counts: possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (counts one and two); attempted carjacking in violation of 18 U.S.C. § 2119 (count three); and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c) (count four). Indictment 1-2, ECF No. 1. On January 25, 2016, a jury found Petitioner guilty of counts three and four. Jury Verdict 1, ECF No. 52; Judgment 1, ECF No. 62. Following the jury's verdict, the government dismissed count one and Petitioner pleaded guilty to count two. Judgment 1.
On June 21, 2016, Petitioner was sentenced to a total of 162 months' imprisonment, including 78-month concurrent sentences on counts two and three and a consecutive 84-month sentence on count four. Id. at 2. Petitioner was also sentenced to three years of supervised release following his imprisonment. Id. at 3. On June 28, 2016, Petitioner directly appealed his judgment, challenging the sufficiency of the evidence in relation to count three, consideration of his prior juvenile convictions in calculating his criminal history score, and the reasonableness in his sentence. United States v. Harbin, 715 Fed.Appx. 873, 874 (11th Cir. 2017) (per curiam). On October 17, 2017, the United States Court of Appeals for the Eleventh Circuit affirmed Petitioner's judgment. Id.
On January 21, 2020, the Court received Petitioner's pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 87). The Court ordered Respondent to file an answer within 60 days. Order 1, Jan. 21, 2020, ECF No. 86. Respondent responded (ECF No. 90) to Petitioner's motion on March 4, 2020, and Petitioner replied (ECF No. 91) on March 19, 2020.
On July 9, 2020, Petitioner moved to appoint counsel and permit amended briefing on his motion to vacate (ECF. No. 87). Mot. to Appoint Counsel and Mot. to Amend, ECF No. 93. On August 5, 2020, the Court granted this motion. Text-only Order, ECF No. 94. On September 10, 2020, Petitioner filed an unopposed motion to stay while the Eleventh Circuit decided United States v. Coats, 8 F.4th 1228 (11th Cir. 2021). Mot. to Stay 1, ECF No. 96. On January 29, 2021, the Court granted that motion. Order 1, ECF No. 98. On August 13, 2021, the Court lifted the stay and ordered Petitioner to file his amended motion to vacate within 30 days. Order 1, ECF No. 99. The Court also ordered Petitioner to restate his original grounds for relief if he still wished to proceed on those grounds. Id. at 2.
Petitioner filed his amended motion (ECF No. 100) on September 13, 2021. In lieu of a response, Respondent filed a motion to dismiss (ECF No. 103) Petitioner's amended motion on December 9, 2021. Petitioner responded (ECF No. 105) on January 7, 2022, and Respondent replied (ECF No. 106) on January 21, 2022. Respondent's motion to dismiss is ripe for review.
DISCUSSION
Respondent moves to dismiss Petitioner's amended motion to vacate as untimely, contending (1) Petitioner's amended motion surpassed the one-year limitation; (2) the amended motion does not relate back to the initial motion; and (3) Petitioner is not entitled to equitable tolling. Mot. to Dismiss 3-5, ECF No. 103. Petitioner argues his amended motion relates back to the initial motion and is therefore timely. Resp. to Mot. to Dismiss 2, ECF No. 105. The Court recommends that Respondent's motion to (ECF No. 103) be granted, and Petitioner's amended motion (ECF No. 100) be dismissed.
I. Petitioner's amended 18 U.S.C. § 2255 motion is untimely.
While there is no dispute Petitioner's original motion is timely, his amended motion is untimely. The Anti-Terrorism and Effective Death Penalty Act (hereinafter “AEDPA”) was enacted primarily to put an end to the unacceptable delay in the review of prisoners' habeas petitions. “The purpose of the AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the . . . overloading of our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisprudence.” Hohn v. United States, 524 U.S. 236, 264-65 (1998) (Scalia J., dissenting). The AEDPA, which became effective on April 24, 1996, therefore instituted a time bar as follows:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Here, because Petitioner's motions rely on rights newly recognized by the United States Supreme Court, the limitation period will run from the date in which the right is recognized. 18 U.S.C. § 2255(f)(3). Petitioner's original motion rested on the right established in United States v. Davis, 139 S.Ct. 2319 (2019) on June 24, 2019. Mot. to Vacate 5, ECF No. 87. Petitioner had one-year from this date to file a timely motion, and the Court received Petitioner's original motion within this one-year limitation on January 12, 2020. As a result, the original motion was timely. However, Petitioner's amended motion relies on the rights established in Rehaif v. United States, -- U.S. --, 139 S.Ct. 2191 (2019) on June 21, 2019. Am. Mot. to Vacate 2, ECF No. 100. Petitioner had one year from this date to file a timely motion, but Petitioner's amended motion was filed beyond this one-year limitation on September 13, 2021 (ECF No. 100). As a result, the amended motion is untimely.
Petitioner abandoned his Davis claim by failing to restate it in his amended motion. See Order 2, Aug. 13, 2021 (instructing Petitioner that if he does not intend for his amended motion to supersede the original motion, he must restate his grounds for relief in the amended motion). Petitioner's amended motion is therefore the operative pleading, and it is RECOMMENDED that the original motion (ECF No. 87) be DENIED AS MOOT.
II. Petitioner's amended 18 U.S.C. § 2255 motion does not relate back.
Petitioner argues his amended motion relates back to his original motion, making the amended motion timely. Resp. to Mot. to Dismiss 2. Amendments may relate back when the amended claims arise out of the same conduct or occurrence as the original claims. Fed.R.Civ.P. 15(c)(1)(C). The Eleventh Circuit applied this rule in Davenport v. United States and held relation back requires the amended and original motions “have arisen from the ‘same set of facts[.]'” 217 F.3d 1341, 1344 (11th Cir 2000) (quoting United States v. Pittman, 209 F.3d 314 (4th Cir. 2000)). In Davenport, the defendant was convicted of drug related offenses. The defendant timely filed a motion to vacate his judgment arguing (1) improper application of the definition of “crack cocaine”; (2) improper calculation of the drug's weight; (3) allowance of a perjured testimony; and (4) ineffective assistance of counsel related to the previously stated issues. Id. at 1343. He amended his motion, raising three new allegations of ineffective assistance of counsel based on trial counsel (1) allowing drugs from a separate drug traction to be considered during sentencing; (2) relying on an abbreviated lab report rather than requesting a complete lab report; and (3) failing to advise on a potential plea agreement. Id. The Eleventh Circuit found these motions did not arise out of a “common core of operative facts, ” because the events alleged in each differed in time and type. Id. at 1346. Therefore, it held the amendment did not relate back. Id.
This finding is consistent with Mayle v. Felix, where the United States Supreme Court evaluated the timeliness of an amended habeas corpus petition. 545 U.S. 644, 646 (2005). There, the original petition alleged the trial court wrongfully admitted a witness's videotaped testimony while the amended petition alleged the wrongful admission of pretrial statements. Id. at 644. The Supreme Court held the original and amended petitions did not arise from “a common core of operative facts, ” because the amended petition pertained to pretrial statements, while the original petition pertained to videotaped witness testimony. Id. at 646. Since these petitions alleged conduct differing in type and time, relation back was not permitted. Id.
The Court in Mayle distinguished its ruling from Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574 (1945). There, the plaintiff brought a wrongful death claim under the Federal Employers' Liability Act, 45 U.S.C., § 51 et seq., against her husband's employer, alleging negligent operation of a railroad car and failure to provide a reasonably safe workplace. Tiller, 323 U.S. at 575. The original complaint alleged various acts of negligence, including failure to provide a proper lookout, failure to warn the decedent of the movement of the reversing train, and failure to keep the head car properly lighted. Id. at 581. Through amendment, the plaintiff added a claim under the Federal Boiler Inspection Act, 45 U.S.C. § 22 et seq. (repealed 1994), alleging the employer's violation by not having a light on the rear of the locomotive. Id. at 577-78. Although the claims dealt with different legal theories, relation back was permitted because the same employer conduct of failing to provide a safe workplace was alleged. Id. at 581; see Mayle, 545 U.S. at 646 (distinguishing Tiller).
Petitioner compares his case to Tiller, arguing his original and amended motions arise from a “common core of operative facts, ” because they arise out of the same criminal act. Resp. to Mot. to Dismiss 3-4. However, courts presented with similar situations have found it is not enough for claims to arise out of the same criminal proceeding. See Davenport, 217 F.3d at 1344 (internal citations omitted). Instead, the claims themselves must arise from the “same set of facts, ” meaning they cannot allege facts differing in time and type. Id.
In Young v. United States, the District Court for the Southern District of New York found claims did not arise from the “same set of facts” when one claim alleged an error related to legal interpretation, and the other claim alleged an error related to the petitioner's state of mind. Nos. 09-CR-274-CS, 15-CV-3941-CS, 2020 WL 7711686, at *2 (S.D. N.Y. Dec. 29, 2020) (citing United States v. Navarro, Nos. 6:16-89, 6:19-78, 2020 WL 709329, at *2 (S.D. Tex. Feb. 11, 2020)). There, the petitioner was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Id. at *1. The petitioner filed a timely motion to vacate his sentence, alleging a legal interpretation error when the government sentenced him as an armed career criminal. Id.; see Johnson v. United States, 576 U.S. 591 (2015) (finding the residual clause of the Armed Career Criminal Act unconstitutionally vague). The petitioner amended his motion, alleging an error involving his state of mind when the government failed to prove he knew “his status as a person barred from possessing a firearm.” See Rehaif, 139 S.Ct. at 2194 (establishing the government's burden of proving the defendant knew he was barred from possessing a firearm when prosecuting under 18 U.S.C. §§ 922(g), 924(a)(2)); Young, 2020 WL 7711686, at *1. The court found the facts alleged in each claim differed in time and type. Young, 2020 WL 7711686, at *1. As a result, the petitioner's amended claim did not relate back to his original claim. Id. at *2.
Here, Petitioner's original motion alleged a legal interpretation error when the government interpreted carjacking as a “crime of violence.” Mot. to Vacate 4; see Davis, 139 S.Ct. at 2336 (finding the term “crime of violence” under 18 U.S.C. § 924(c)(3)(B) constitutionally vague). Meanwhile, Petitioner's amended motion alleged an error involving his state of mind when the government failed to prove he knew “his status as a person barred from possessing a firearm.” Am. Mot. To Vacate 2; see Rehaif, 139 S.Ct. at 2194. Since Petitioner's original motion alleges an error in legal interpretation while his amended motion alleges an error pertaining to his state of mind, Petitioner's motions allege facts differing in time and type. As a result, Petitioner's motions do not arise from “a common core of operative facts, ” making them similar to Davenport, Mayle, and Young. Therefore, Petitioner's amended motion does not relate back to his original motion.
III. Equitable Tolling is not justified.
In certain situations, the one-year AEDPA limitations period is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is available, if a petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 649 (internal quotation marks omitted). “The burden of proving circumstances that justify the application of the equitable tolling doctrine rests squarely on the petitioner.” San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) (citation omitted). “A petitioner ‘must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue.'” Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (quoting Hutchinson v. Florida, 677 F.3d 1097, 1099 (11th Cir. 2012)). As such, “the allegations supporting equitable tolling must be specific and not conclusory.” Hutchinson, 677 F.3d at 1099. Petitioner has made no such showing. Therefore, Petitioner's motion to vacate should be denied as untimely. See McCray v. United States, NO. 19-20476-CIV-MORENO, 2019 WL 2193621, at *2 (S.D. Fla. May 1, 2019), recommendation adopted by 2019 WL 2192110 (S.D. Fla. May 21, 2019) (“Courts may sua sponte consider the issue of the timeliness of a motion to vacate.”) (citing Day v. McDonough, 547 U.S. 198, 199 (2006)).
Even if Petitioner attempted to show his entitlement to equitable tolling, it would be unsuccessful as Petitioner cannot show that he has diligently pursued his rights. Petitioner failed to move for the appointment of counsel prior to the expiration of the one-year limitation period and failed to include his amended claims in his original motion despite the amended claim's having already been established. Additionally, no extraordinary circumstances stood in his way of pursing his rights. Petitioner may not contend inadvertence to his rights as an extraordinary circumstance. Ignorance to the law is not an excuse, even for pro se applicants. See Howell v. Crosby, 415 F.3d 1250, 1252 (11th Cir. 2005). Therefore, Petitioner is not entitled to equitable tolling.
IV. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that Respondent's motion to dismiss (ECF Nos. 103) be GRANTED and Petitioner's amended motion to vacate be DISMISSED as untimely. It is also RECOMMENDED that Petitioner's original motion to vacate (ECF No. 87) be DENIED AS MOOT. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.