Opinion
24-1174
05-09-2024
In re: RICHARD HENNIS, Movant.
(D.C. Nos. 1:16-CR-00119-PAB-1 &1:18-CV-00055-PAB) (D. Colo.)
Before TYMKOVICH, BRISCOE, and MATHESON, Circuit Judges.
ORDER
Richard Hennis, a federal prisoner represented by counsel, moves for authorization to file a second 28 U.S.C. § 2255 motion for relief from his conviction. We deny the motion for the reasons explained below.
I. BACKGROUND &PROCEDURAL HISTORY
Hennis pleaded guilty in 2016 to production and transportation of child pornography. He received a 324-month prison sentence. He appealed but this court dismissed that proceeding based on the appeal waiver in his plea agreement.
Soon after the dismissal of his appeal, Hennis filed a pro se § 2255 motion. He asserted six claims of ineffective assistance of counsel, the details of which are not presently relevant. The government responded on the merits but also argued that the motion was premature because Hennis's deadline to file a petition for certiorari had not yet passed, so his conviction was not deemed final for § 2255 purposes. See Clay v. United States, 537 U.S. 522, 527 (2003) ("Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.").
Apparently inspired by the government's claim that he had filed his § 2255 motion too early, Hennis then moved for leave to amend. He claimed he had hastily prepared his original motion based on incorrect advice from an inmate that he needed to file it within one year from the date of his conviction. Thus, he
did not address the voluntariness or coercion of his plea agreement, movant not being on medication for his diagnosed bi-polar disorder and PTSD, movant was not consciously aware of the implications of the charges and the actual sentence he was being told to plea[d to] by movant[']s attorney, had movant been consciously aware that he was agreeing to a 27 year sentence, movant would have opted for a jury trial, movant is adamant that he is not a producer nor a distributor of anything, and expressed to his counsel that he did not want to plead to something he did not do, thus movant was under duress.Mot. for Auth., Attach. 3 at 3.
While the § 2255 motion and the motion to amend were still pending, an attorney entered an appearance on Hennis's behalf. The district court then gave Hennis an opportunity to file a counseled motion for leave to amend. Counsel instead filed a status report explaining, based on various considerations, that his client would be better served by obtaining a ruling on the already-pending motion to amend. Yet counsel also attached a proposed amended § 2255 motion. This proposed motion did not include the voluntariness claims Hennis summarized in his pro se motion to amend, but instead asserted a new claim of ineffective assistance of trial counsel. According to this proposed claim, his trial attorney should have moved to suppress evidence the government obtained through a search warrant because the warrant was allegedly unsupported by probable cause.
By attaching the proposed motion to the status report, Hennis's attorney insisted that Hennis was not attempting to add anything to his pro se motion to amend. Incongruously, he explained that he was only attempting to assist the court in "evaluat[ing] how long the Government should be afforded to answer [his] amended § 2255 motion, assuming [his] pro se motion for leave to amend is granted." Mot. for Auth., Attach. 4 at 6 n.1 (emphasis removed).
The district court issued a single order resolving all outstanding issues. First, the district court denied the pro se motion to amend. It reasoned that amendment to assert the claim or claims summarized in that motion would be futile because: (i) Hennis's plea agreement contained a collateral-attack waiver; and (ii) assuming his proposed claim(s) could be framed in terms of ineffective assistance (an exception to the collateral-attack waiver), Hennis's assertions of incapacity, duress, and involuntariness were contradicted by the plea agreement and the change-of-plea colloquy.
Second, the district court also struck the proposed amended § 2255 motion attached to the status report. The district court did not explain why it believed it needed to make any ruling about that attachment despite Hennis's counsel's disclaimer about its purpose. In any event, the district court ruled that the proposed new claim (ineffective assistance for failing to move to suppress) had no connection to any claim Hennis had previously asserted, so the court would "not accept [the attachment] for filing." Mot. for Auth., Attach. 5 at 16 n.5.
Finally, the district court reached the merits of the six ineffective-assistance claims Hennis asserted in his original motion, denied relief, and denied a certificate of appealability (COA).
Still represented by the same attorney, Hennis filed a notice of appeal and moved for a COA from this court. He did not, however, request a COA as to his six original claims. He instead requested a COA as to whether the district court should have granted his motion to amend, and whether it should have stricken the proposed amendment attached to the status report. He asserted that the district court delayed ruling on the pro se motion to amend until after the § 2255 statute of limitations had expired. But if the district court had ruled on it before that deadline, he contended he would have been able to raise any claim he wanted, with no need to connect it to a pending claim-such as his ineffective-assistance claim based on his trial attorney's failure to move to suppress. Hennis accordingly argued that the district court's delay justified equitable tolling of the § 2255 limitations period.
This court denied a COA for three reasons:
• "[A] motion to amend cannot serve as a placeholder providing carte blanche to raise any subsequent claim which would otherwise be time-barred ...." United States v. Hennis, No. 23-1038, 2023 WL 3118088, at *2 (10th Cir. Apr. 27, 2023).
• The district court's failure to rule on the pro se motion to amend before the expiration of the § 2255 limitations period was not an "impediment to [Hennis] timely submitting this additional claim." Id. at *3. In other
words, he could have timely filed a second motion to amend while his first was still pending.
• Hennis did not adequately preserve his equitable tolling argument in the district court, so this court would not reach it. Id.
We issued that decision in April of last year. In April of this year, we received the motion for authorization now at issue.
II. LEGAL STANDARD
To qualify for authorization, Hennis must make a prima facie showing that his proposed motion relies on
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h); see also id. § 2244(b)(3)(C) (establishing the prima facie burden at this phase).
III. ANALYSIS
Hennis's current attorney is not the same one who represented him in the earlier § 2255 proceedings. Through his new attorney, Hennis proposes what appear to be four claims of ineffective assistance of counsel. The court's uncertainty flows from the fact that, on its face, Hennis's Motion for Authorization states two claims, but one of those claims appears to have distinct sub-parts. Moreover, he submitted a supporting memorandum in which he describes three allegedly viable claims, but those claims do not entirely overlap with the claims described in his Motion for Authorization. Taking these two sources together, we understand Hennis to be proposing the following ineffective-assistance claims:
1. Previous § 2255 counsel "amended the habeas late." Mot. for Auth. at 8. Hennis does not elaborate.
2. Previous § 2255 counsel "incorrectly stated that a 12b motion could be filed without affecting any § 2255 claims." Id. Hennis again does not elaborate.
3. Trial counsel coerced Hennis into taking a plea deal-the same claim Hennis asserted in his pro se motion to amend.
4. Trial counsel failed to move to suppress based on the search warrant's alleged lack of probable cause-the same claim Hennis included in the proposed motion attached to his status report.
According to Hennis, these claims fall under the newly-discovered-evidence prong of the § 2255(h) standard, and the newly discovered evidence is his previous attorneys' "misconduct." Mot. for Auth. at 9, 10. He does not say anything more about that misconduct. In context, he apparently has in mind the same alleged failings that define the ineffective-assistance claims.
Claims 3 and 4 attempt to reassert claims Hennis already tried to bring in his previous § 2255 proceedings. He feels this is justified because he believes our earlier decision was wrong: "[T]he court should have granted a COA." Mem. of Law in Supp. of Appl. for Successive Pet. for Habeas Corpus at 10. We need not decide if any rule of law prohibits claims 3 and 4 simply by virtue of being repetitive because, regardless, none of Hennis's proposed claims meets the § 2255(h)(1) standard.
To begin, Hennis does not address whether an attorney's acts or omissions (the decisions that make up an ineffective-assistance claim) can properly be deemed "evidence." Assuming for argument's sake the answer is yes, then at least claims 3 and 4 fail because the evidence is not newly discovered-Hennis knew about his trial attorney's conduct during his earlier § 2255 proceeding. The same might be said about the previous § 2255 attorney's conduct (underlying claims 1 and 2), although we apparently have never explored when an attorney's ineffective assistance becomes "discovered" for purposes of postconviction relief. Even if the premise underlying claims 1 and 2 can be deemed newly discovered, all four claims fail because this ineffective-assistance evidence is not the kind of evidence § 2255(h)(1) requires: "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." This is a "factual innocence" standard. United States v. Williams, 790 F.3d 1059, 1077 (10th Cir. 2015). Hennis's previous attorneys' actions have nothing to do with whether Hennis in fact produced or transported child pornography.
Perhaps the court could more easily dispose of claims 1 and 2 by saying that ineffective assistance of postconviction counsel is not a recognized basis for postconviction relief. See Coleman v. Thompson, 501 U.S. 722, 752 (1991) (in the § 2254 context, stating, "There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." (citation omitted)), modified on other grounds by Martinez v. Ryan, 566 U.S. 1, 8-9 (2012). But § 2255(h) does not give us authority to evaluate the merits of a proposed successive claim. See Case v. Hatch, 731 F.3d 1015, 1028 (10th Cir. 2013) (in the § 2254 context, emphasizing that this court's assessment at the motion-for-authorization phase is focused on the requirements for authorization, not the potential merits of the proposed claim).
Hennis's filings also include an affidavit from him in which he explains that, in his view, he never really possessed child pornography. Assuming he intends this court to consider this affidavit as part of the § 2255(h)(1) analysis, it does not change the result. Hennis's side of the story is not newly discovered evidence.
Finally, Hennis's Motion for Authorization asserts, without elaboration, that "all procedural faults are a result of excusable neglect." Mot. for Auth. at 8. He does not cite, and we are not aware of, any authority holding that excusable neglect is an exception to the § 2255(h) requirements.
IV. CONCLUSION
We deny the Motion for Authorization. This denial "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).