Opinion
3:92-CR-029-H, 3:96-CV-2996-H
January 28, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and a standing order of the District Court this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS: Type of Case: Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.
Parties: Petitioner is an inmate presently in federal custody. Respondent is the United States of America.
Procedural History:
On April 30, 1992, Petitioner pled guilty to one count of bank fraud under 18 U.S.C. § 1344. On July 9, 1992, he was sentenced to 27 months imprisonment and a five year term of supervised release. Petitioner served his sentence and was placed on supervised release on August 3, 1994. On February 22, 1996, Petitioner's supervised release was revoked.
On October 14, 1996, Petitioner filed a petition for relief pursuant to 28 U.S.C. § 2255. On June 20, 1997, both Petitioner and Respondent consented to proceed before Magistrate Judge Boyle. On July 16, 1998, Magistrate Judge Boyle entered a Memorandum Opinion and Order denying Petitioner's § 2255 motion.
Pro se habeas petitions are considered filed when the papers are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998). To avoid confusion, however, the Court will also note the date Petitioner's motions were docketed with the Clerk's Office. Petitioner's § 2255 motion was docketed November 1, 1996.
On August 15, 2001, Petitioner moved to vacate the Magistrate Judge's judgment and reopen his § 2255 petition. Petitioner argued that under the Fifth Circuit's ruling in United States v. Johnston, 258 F.3d 361 (5th Cir. 2001), the Magistrate Judge lacked jurisdiction to enter judgment in this case. On September 10, 2001, Magistrate Judge Boyle entered Findings, Conclusions and a Recommendation vacating her July 16, 1998, Memorandum Opinion and Order and re-filing the order in the form of a recommendation to the District Court. On September 14, 2001, the District Court adopted the Magistrate Judge's September 10, 2001, Findings, Conclusions and Recommendation and entered judgment denying Petitioner's § 2255 motion.
Petitioner's motion to vacate was docketed August 20, 2001.
On September 20, 2001, Petitioner filed a Fed.R.Civ.P. 59(e) motion to alter or amend the District Court's September 14, 2001, final judgment. Petitioner's motion was never ruled on.
Petitioner titled his motion as a "motion to reconsider." Petitioner's motion was docketed on September 24, 2001.
On December 18, 2001, Petitioner filed a notice of appeal. On March 7, 2002, the District Court granted Petitioner leave to proceed in forma pauperis on appeal and the Court denied Petitioner a certificate of appealability.
Petitioner's notice of appeal was docketed December 26, 2001.
On June 13, 2002, the Fifth Circuit remanded this case because the Court has not yet ruled on Petitioner's September 20, 2001, Rule 59(e) motion. The District Court has referred Petitioner's Rule 59(e) motion to the undersigned Magistrate Judge. The District Court also referred Petitioner's: (1) February 2, 2001, motion for writ of error corum nobis; (2) October 1, 2001, motion for reconsideration of September 25, 2001, order denying the appointment of counsel; (3) October 11, 2001, motion to void sentencing; (4) November 21, 2001, motion for summary judgment; and (5) August 22, 2002, motion to amend/supplement original pleading.
Discussion: 1. September 20, 2001, Rule 59(e) motion to alter or amend judgment
Petitioner's Rule 59(e) motion was docketed September 24, 2001.
Petitioner filed his § 2255 motion on October 14, 1996. On December 31, 1996, Respondent filed its answer. On January 9, 1997, Petitioner filed a reply. Petitioner did not seek to amend his petition to add any additional claims. On July 16, 1998, the Magistrate Judge entered her Memorandum Opinion denying Petitioner's § 2255 motion.
On August 15, 2001, Petitioner moved to reopen his § 2255 petition. Petitioner argued that under recent Fifth Circuit precedent, the Magistrate Judge lacked jurisdiction to enter final judgment on his § 2255 motion. Petitioner stated that "Daniels instant motion here `makes no challenge whatsoever to the merits of his conviction to trigger the ("AEDPA").'" (Mot. to reopen at p. 2). Petitioner also stated, "Daniels argues that in this instant motion he makes no challenge to the merits of the charge against him." ( Id.). Petitioner did not seek to amend his petition to add any new claims or arguments.
On September 10, 2001, Magistrate Judge Boyle granted Petitioner's motion to reopen his § 2255 motion "for the limited purpose of having this Court's July 16, 1998, Memorandum Opinion and Order denying his § 2255 motion VACATED and RE-FILED in the form of a recommendation to the District Court." (September 10, 2001, Findings, Conclusions and Recommendation, p. 1). On September 14, 2001, the District Court adopted the Magistrate Judge's Findings, Conclusions and Recommendation and entered final judgment.
On September 18, 2001, and September 19, 2001, Petitioner filed objections to the Magistrate Judge's Findings, Conclusions and Recommendation. Petitioner argued that he should have been granted the opportunity to amend or supplement his § 2255 motion.
Petitioner's objections were both docketed on September 24, 2001.
On September 20, 2001, Petitioner filed his Rule 59(e) motion. Petitioner's motion referred to the arguments in his September 18 and 19, 2001, objections that he should have been granted an opportunity to amend or supplement his § 2255 motion.
Petitioner's Rule 59(e) motion seeks leave to amend or supplement his October 14, 1996, § 2255 motion. Petitioner filed his motion to amend approximately five years after he filed his petition and Respondent filed its answer. Petitioner may therefore only amend and/or supplement his petition by leave of Court. See Fed.R.Civ.P. 15.
Although Fed.R.Civ.P. 15(a) states that leave to amend shall be freely given when justice so requires, "leave to amend should not be given automatically." See Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1163 (5th Cir. 1982) (citing Addington v. Farmer's Elevator Mutual Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981)). Further, a district court's discretion to allow amendment "narrows considerably after judgment." Vielma v. Eureka Co., 218 F.3d 458, 468 (5th Cir. 2000). In cases where a party seeks leave to amend after entry of judgment, the Fifth Circuit has "consistently upheld the denial of leave to amend where the party seeking to amend has not clearly established that he could not reasonably have raised the new matter prior to the trial court's merits ruling." Id. (quoting Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995)).
Petitioner moves to amend or supplement his petition pursuant to Fed.R.Civ.P. 15(a) and (d). The standards for determining whether to grant the motion under 15(a) or (d) do not substantially differ. See Ergobilt, Inc. v. Neutral Posture Ergonomics, Inc., No. 3:97-CV-2548-L, 2002 WL 1489521, at *8 n. 5 (N.D. Tex. July 9, 2002). The Court will therefore analyze the motion under Rule 15(a).
In this case, Petitioner argues that he seeks to amend his petition to add claims based on new case law. Petitioner relies on United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998), to argue that proof of FDIC insurance is an essential element of bank fraud. Petitioner also relies upon United States v. Sprick, 233 F.3d 845, 852 (5th Cir. 2000) and United States v. Odiodio, 244 F.3d 398, 401 (5th Cir. 2001), to argue that the government must show that the defendant placed the financial institution at risk of civil liability. Each of these cases, however, was decided prior to Petitioner's August 15, 2001, motion to reopen his § 2255 petition. Petitioner's motion to reopen, however failed to seek leave to amend the petition. Petitioner has therefore failed to show that he could not have reasonably raised these claims prior to the entry of judgment. Petitioner is not entitled to relief under Fed.R.Civ.P. 59(e).
Further, Petitioner's motion to amend is untimely. The Magistrate Judge's Memorandum Opinion and Order was entered on July 16, 1998. On September 10, 2001, the Magistrate Judge reopened Petitioner's § 2255 motion for the sole purpose of rendering Findings, Conclusions and a Recommendation to replace her Memorandum Opinion and Order. The Magistrate Judge did not reopen the § 2255 motion to re-consider the merits of the motion, nor did Petitioner's motion to reopen seek to have the merits of his § 2255 motion re-considered. Petitioner therefore seeks leave to amend his § 2255 petition approximately five years after he filed the petition.
Among the factors to be considered in determining whether to allow amendment are whether permitting the amendment would cause undue delay in the proceedings, whether the amendment would lead to expeditious disposition of the merits of the litigation and judicial economy. Chitimacha, 690 F.2d at 1163 (citations omitted).
Further, "[o]ne important factor in the district court's decision is the timeliness of the motion to amend." Id. As the Fifth Circuit has stated:
Mere passage of time need not result in a denial of leave to amend, but delay becomes fatal at some period of time. Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981). Where there has been an apparent lack of diligence, the burden shifts to the movant to prove that the delay was due to excusable neglect. Daves v. Payless Cashways, Inc., 661 F.2d 1022, 1025 (5th Cir. 1981) (liberality in pleading does not bestow on a litigant the privilege of neglecting her case for a long period of time.); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598 n. 2 (5th Cir. 1981).Id.; see also Jackson v. Columbus Dodge, Inc., 676 F.2d 120 (5th Cir. 1982) (finding no abuse of discretion where trial court denied amendment twenty-eight months after the litigated transaction and nineteen months after the original complaint was filed); Daly v. Sprague, 675 F.2d 716 (5th Cir. 1982) (finding fact that proposed amendment was filed sixteen months after original complaint was filed was weighed against movant); Daves v. Payless Cashways, Inc., 661 F.2d 1022 (5th Cir. 1981) (finding no abuse of discretion where trial court denied amendment after unexplained nineteen month delay between original complaint and motion for leave to amend).
In this case, Petitioner argues that he relies on new case law decided after his conviction. Petitioner relies upon United States v. Scott, 159 F.3d 916, 921 (5th Cir. 1998) to argue that proof of FDIC insurance is an essential element of bank fraud. This case was decided three years prior to Petitioner's motion to amend. Petitioner also relies upon United States v. Sprick, 233 F.3d 845, 852 (5th Cir. 2000), and United States v. Odiodio, 244 F.3d 398, 401 (5th Cir. 2001), to argue that the government must show the defendant placed the financial institution at risk of civil liability. Both of these cases were decided prior to Petitioner's motion to reopen, yet Petitioner did not move to amend his § 2255 petition in his motion to reopen.
Petitioner's motion to amend was not timely filed. Further, allowing amendment would circumvent the principles of judicial economy. The Magistrate Judge re-opened Petitioner's October 14, 1996, petition for the very limited purpose of re-filing the order as Findings, Conclusions and a Recommendation. Petitioner has not shown that he is entitled to alter or amend the judgment, nor has he shown he is entitled to amend or supplement his petition. Petitioner's motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) should be DENIED.
2. January 30, 2001, motion for writ of error corum nobis
On January 30, 2001, Petitioner filed a motion for writ of error corum nobis. Petitioner argues his conviction was unlawful because of ineffective assistance of counsel and because the District Court failed to allow Petitioner to personally address the Court before sentencing.
Petitioner's motion for writ of error corum nobis was docketed February 2, 2001.
In United States v. Morgan, 346 U.S. 502 (1954) the Supreme Court established that federal courts have the power under the All-Writs Act, 28 U.S.C. § 1651 (a), to grant a writ of error coram nobis to vacate a conviction after the conviction had been served. The Court held that the extraordinary remedy should be issued, however, "only under circumstances compelling such action to achieve justice." Id. at 511. Courts have held that a writ of error corum nobis is appropriate where no other remedy is available, such as where a petitioner is no longer is custody and therefore cannot bring a habeas corpus petition. See Puente v. United States, 676 F.2d 141, 145 n. 2 (5th Cir. 1982); Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992); United States v. Mandel, 862 F.2d 1067, 1075 (4th Cir. 1988); see generally United States v. Morgan, 346 U.S. 502 (1954).
In this case, Petitioner remains in custody and he has not shown that he has been unable to pursue remedies through his habeas corpus petitions. Petitioner has shown no compelling circumstances that entitle him to a writ of error coram nobis. Petitioner's motion should therefore be DENIED.
3. September 27, 2001, motion for reconsideration
On September 27, 2001, Petitioner filed a motion to re-open/reconsider and vacate the Court's September 25, 2001, order denying Petitioner's motion for appointment of counsel as moot.
Petitioner's motion to reconsider was docketed October 1, 2001.
On September 17, 2001, Petitioner filed a motion for appointment of counsel seeking counsel to represent him in his August 15, 2001, "motion to reopen Defendant's first § 2255 petition pursuant to a violation of Article III of the Constitution." The District Court granted Petitioner's motion to reopen on September 14, 2001. The Court therefore denied Petitioner's motion for counsel as moot. Petitioner now seeks reconsideration of the denial of counsel stating that he filed objections to the Magistrate Judge's Findings, Conclusions and Recommendation that vacated her Memorandum Opinion and Order. Petitioner, however, was granted all the relief that he sought in his August 15, 2001, motion to reopen. The District Court therefore correctly denied the motion for appointment of counsel as moot. Petitioner's motion to re-open/reconsider the Court's September 25, 2001, order should be DENIED.
4. October 5, 2001, motion to void sentencing
On October 5, 2001, Petitioner filed a motion to void sentencing judgment pursuant to Fed.R.Crim.P. 32(c)(3)(C). Petitioner argued that the trial court was without jurisdiction because the Court failed to personally address Petitioner before imposing sentence.
Petitioner's motion to void sentencing was docketed October 11, 2001.
Fed.R.Crim.P. 32(c)(3)(C) states that before imposing sentence, the Court must:
(C) address the defendant personally and determine whether the defendant wishes to make a statement and to present information in mitigation of the sentence.
The record reflects that the Court addressed Petitioner at sentencing, that Petitioner made a statement apologizing to the Court, that Petitioner stated to the Court he did not think his actions constituted bank fraud and that he did not receive any money from his activities. (Sentencing Tr. 2:9-25; 5:3-17; 6:1-3). The record reflects that the Court complied with Rule 32(c)(3)(C). Petitioner's motion to void sentencing should be DENIED.
5. November 16, 2001, motion for summary judgment
On November 16, 2001, Petitioner filed a motion for summary judgment arguing that the Court was without jurisdiction to sentence him because the Court failed to personally address him before sentencing as required by Fed.R.Crim.P. 32(c)(3)(C). As discussed above, the Court fully complied with Rule 32(c)(3)(C). Petitioner's motion for summary judgment should be DENIED.
Petitioner's motion for summary judgment was docketed November 21, 2001.
6. August 16, 2002, motion to supplement/amend original pleading
On August 16, 2002, Petitioner filed a motion to supplement/amend his original pleading. Petitioner argues that his October 11, 2001, motion to void sentencing has not been ruled on and he seeks to add these claims to his original pleading. As discussed above, Petitioner's October 11, 2001, motion to void sentencing should be denied. Therefore, Petitioner's August 22, 2002, motion to supplement/amend his original pleading to add these claims should also be DENIED.
Petitioner's motion to supplement/amend was docketed August 22, 2002.
RECOMMENDATION :
For the foregoing reasons, the Court recommends that: (1) Petitioner's September 20, 2001, Rule 59(e) motion be denied; (2) Petitioner's January 30, 2001, motion for writ of error corum nobis be denied; (3) Petitioner's September 27, 2001, motion for reconsideration be denied; (4) Petitioner's October 5, 2001, motion to void sentencing be denied; (5) Petitioner's November 16, 2001, motion for summary judgment be denied; and (6) Petitioner's August 16, 2002, motion to supplement/amend pleading be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from a de novo determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).