Opinion
EP-99-CA-0088-DB, EP-96-CR-0189-DB
March 20, 2003
On this day, the Court considered a Report and Recommendation of United States Magistrate Judge Norbert J. Garney ("RR"), filed in the above-captioned cause on March 2, 2001. Therein, Judge Garney recommends that Movant Cesar Islas-Alvarez' Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 ("Motion to Vacate"), filed on March 12, 1999, be denied. Movant filed timely Objections to the R R on March 16, 2001, to which the Government responded on March 29, 2001. On July 23, 2001, Movant filed "Supplemental Memorandum of Points and Authorities in Support of Motion to Vacate" ("Supplement"). Respondent thereafter filed a "Motion to Dismiss and Reply to the Supplement" ("Motion to Dismiss") on May 29, 2002. On October 4, 2002, Movant filed a Response to Respondent's Motion to Dismiss.
The Court granted Movant's Motion to Supplement his Motion to Vacate on June 21, 2001.
For the reasons that follow, the Court is of the opinion that the RR should be approved and adopted, that Movant's Motion to Vacate should be denied, and that Movant's Supplement should be stricken as time-barred.
BACKGROUND
On May 1, 1996, Movant was charged in a Superseding Indictment with one count of conspiracy to possess with the intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 846 841(a)(1) and three counts of possession with intent to distribute a quantity of marijuana in violation of 21 U.S.C. § 841(a)(1). A jury found Movant guilty on all counts and on October 28, 1996, the Court entered Judgment sentencing Movant to a term of 365-months imprisonment. Movant appealed his conviction and on November 10, 1997, the Fifth Circuit Court of Appeals affirmed the Court. Movant filed a Petition for Rehearing which was denied on March 5, 1998. The Court of Appeals issued a mandate on March 13, 1998, affirming Movant's conviction.
On March 12, 1999, Movant, proceeding with counsel, timely filed his Motion to Vacate under § 2255. Movant raised ineffective assistance of counsel claims in support alleging that his counsel failed to:
1. Properly investigate his case;
2. Properly brief Movant regarding evidence against him;
3. Adequately communicate with Movant regarding his case during the pendency of his case
4. File timely objections to the Pre-Sentence Report and to investigate matters alleged in the Pre-Sentence Report;
5. Properly advise Movant regarding the sentencing guidelines and how they might apply to his case;
6. File pre-trial motions and to file a Singleton motion to dismiss or to request a Singleton jury instruction; and
7. Raise Movant's "strongest issues" on appeal and set forth an "adequate statement" of facts.
On April 27, 1999, the Government filed a response to Movant's Motion to Vacate. In the R R, the Magistrate Judge concluded that Movant failed to demonstrate that counsel's alleged errors prejudiced Movant's case. In addition, the Magistrate Judge found Movant's allegations entirely conclusory because Movant failed to allege any concrete facts demonstrating counsel's alleged ineffective performance. The Magistrate Judge further explained:
Petitioner fails to set forth facts stating what counsel should have done or how Petitioner was prejudiced by counsel's actions. His only attempt at demonstrating prejudice is saying that but for counsel's actions, he "may" have pled guilty. Moreover, habeas counsel in the instant case provides no reason for his failure to more fully develop the allegations in the petition. Where a petitioner fails to allege facts showing how he was prejudiced by counsel's misfeasance, his allegations are conclusory and he fails the second prong of Strickland. (citations omitted).
Thereafter, Movant filed Objections claiming that his trial attorney should have objected to the "untimely notice of enhancement filed by the Government" and that the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) should have been applied retroactively to his case. Respondent filed a Reply to Movant's Objections arguing that Movant raises these arguments for the first time in his Objections and that the claims are without merit.
After filing Objections, Movant retained new counsel and filed a "Supplemental Memorandum of Points and Authorities in Support of Motion to Vacate" on July 23, 2001. The following represents a summary of the additional facts and arguments presented in Movant's Supplement:
The Magistrate Judge filed his R R on March 2, 2001. In response, Movant filed Objections on March 16, 2001. On April 2, 2001, Movant filed a motion to extend time to file additional supplementation. The Court granted Movant's Motion to Supplement via an Order filed on June 21, 2001. Consequently, Movant filed his Supplement on July 23, 2001. After multiple filings of various pleadings regarding discovery issues, Respondent filed a Motion to Dismiss on May 29, 2002. Movant, after filing two motions for extensions of time, finally filed his Response to Respondent's Motion to Dismiss on October 4, 2002.
1. Trial counsel failed to properly investigate his case:
a) failed to investigate background of government witnesses;
b) failed to prepare for trial; spent all efforts trying to work out a plea agreement;
2. and 3. Counsel failed to properly brief Movant regarding evidence against him and/or adequately communicate with Movant regarding his case during the pendency of his case:
a) failed to communicate with Movant the strength of the Government's case, the lack of defenses, and their inability to prevail at trial;
b) failed to communicate trial strategy, including possible witnesses, evidence, and Movant's right to testify on his own behalf;
c) the severity of the likely sentence;
d) the contents of the two proposed plea agreements;
e) counsel never advised Movant of the necessity to inform the Court of his correct identity and that failure to divulge his true identity would jeopardize his credibility with the government;
f) Mr. Cordova never told Movant that he would not be his trial attorney until the week prior;
g) Counsel did not ask Movant any questions regarding the Government's witnesses;
h) Movant repeatedly tried to communicate with counsel regarding his pre-sentence interview with the Probation Department; Counsel did not accept these calls;
i) Movant was unaware of the legal significance of proceeding to trial as opposed to accepting a plea;
j) Counsel failed to adequately communicate with Movant the significance of an acceptance of responsibility; Counsel failed to communicate with the Court that Movant did in fact accept responsibility.
4. Counsel failed to file timely objections to the Pre-Sentence Report and to investigate matters alleged in the Pre-Sentence Report:
a) counsel failed to conduct investigation regarding allegations made in the Pre-sentence report; specifically testimony concerning a shed that allegedly contained 2000 pounds of marijuana;
b) counsel failed to request an evidentiary hearing in order to cross-examine Government witnesses;
c) counsel failed to note in his objections and sentencing memorandum that Movant already accepted responsibility;
5. Counsel failed to properly advise Movant regarding the sentencing guidelines and how they might apply to his case:
a) Movant refers to allegations made under claims 1), 2), and 3).
At the time the Superseding Indictment was filed on May 1, 1996, Francisco F. Macias was Movant's attorney of record. Prior to trial, Mr. Macias with drew and Ron Cordova and Tom Stanley entered their appearances. Mr. Cordova and Mr. Stanley remained Movant's counsel throughout the duration of his trial and sentencing.
Movant's Reply to Govern.'s Motion to Dismiss, Ex. B (Counsel for Movant, in their September 10, 2002 Reply to Government's Opposition, outlined how the claims advanced in Movant's Supplement relate back to his original Motion to Vacate).
Respondent filed, in response to Movant's Supplement, a Motion to Dismiss Supplement. Respondent argues that all except one claim alleged in Movant's Supplement do not relate back to Movant's original § 2255 Motion to Vacate. Respondent does not oppose the additional factual and legal allegations made with respect to the Sentencing Guideline issue and, therefore, responds to such claim on the merits. Thereafter, Movant filed his Response to Respondent's Motion to Dismiss on October 4, 2002.
STANDARD OF REVIEW
A district court must review a magistrate judge's report and recommendation in light of any objection thereto filed, pursuant to 28 U.S.C. § 636(b)(1). As to any portion for which no objection is filed, the Court reviews for clearly erroneous findings and conclusions of law. See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989). However, the Court must conduct a de novo determination of any portion to which any party files an objection. Id.
DISCUSSION Objections to the R R
Movant claims, for the first time in his Objections, that his trial attorney should have objected to the "untimely notice of enhancement filed by the Government" and that the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) should have been applied retroactively to his case.
Notwithstanding the fact that Movant does in fact raise the aforementioned claims for the first time in his Objections, the Court finds that such claims are without merit. The crux of Movant's argument is dependant on whether the rule established in Apprendi can be applied retroactively. However, the Court finds that it need not concern itself with whether counsel was ineffective for failing to object or for failing to raise the issue on appeal because Movant's Apprendi claim entitles him to no relief. Movant's claim under Apprendi is barred under the rule announced in Teague v. Lane, 489 U.S. 288, 308-09, 109 S.Ct. 1060, 1074, 103 L.Ed.2d 334 (1989).
Courts may not apply new judicial decisions such as Apprendi retroactively without substantial justification because our legal system has a strong interest in the finality of adjudication. Teague, 489 U.S. at 308-09, 109 S.Ct. at 1074. Teague generally prohibits the application of new rules of criminal procedure on collateral review. Id. at 310, 109 S.Ct. at 1075. There are two exceptions to the Teague bar, however. Id. at 307, 109 S.Ct. at 1073. The first exception states that "a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. at 311, 109 S.Ct. at 1075-76. The rule in Apprendi does not do so. The second exception allows for retroactive application of "watershed rules of criminal procedure," those that "require the observance of those procedures that are implicit in the concept of ordered liberty." Id. This exception is further restricted to "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Id. at 313, 109 S.Ct. at 1076-77.
Whether an Apprendi challenge raised in a § 2255 motion is barred pursuant to the second exception in Teague is an open question in the Fifth Circuit. However, the Fifth Circuit Court of Appeals considered a strikingly similar situation in its decision in United States v. Shunk, 113 F.3d 31 (5th Cir. 1997). The question in Shunk was whether the United States Supreme Court's decision in United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) was barred from application on collateral review by the Teague doctrine. The United States Supreme Court held in Gaudin that the materiality of false statements prosecuted under 18 U.S.C. § 1001 was an element of the offense which had to be presented to and decided by a jury, rather than a judge. Id. at 510-11, 115 S.Ct. at 2314. The Fifth Circuit Court of Appeals rejected Shunk's argument that Gaudin fit within the second Teague exception, noting that "one can easily envision a system of 'ordered liberty' in which certain elements of the crime can or must be proved to a judge, not a jury." Shunk, 113 F.3d at 36. The Court concluded that Gaudin did not create a "watershed rule of criminal procedure" that is "central to an accurate determination of innocence or guilt." Id. at 36. Therefore, the Fifth Circuit held that the rule in Gaudin could not be applied retroactively on collateral review. Id. At least two other Circuit Courts have also rejected retroactive application of Gaudin on collateral review. See Mandanici v. United States, 205 F.3d 519, 529-30 (2nd Cir. 2000); see also United States v. Swindall, 107 F.3d 831, 836 (11th Cir. 1997).
The same analysis applies to an Apprendi claim. Apprendi and Gaudin both involve new rules that require proving an element of a criminal offense to a jury, rather than a judge. The specific effect of Apprendi, in essence, recharacterizes certain facts as offense elements which were previously thought to be sentencing factors. Like Gaudin, the impact of this rule is not of "watershed" magnitude. Observance of this procedure is not "implicit in the concept of ordered liberty;" nor is it absolutely necessary to insure a fair trial. In contrast, the "sweeping rule" announced in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), that counsel shall be provided in all criminal trials for serious offenses, is the prototypical example of a watershed ruling. O'Dell v. Netherland, 521 U.S. 151, 167, 117 S.Ct. 1969, 1978-79, 138 L.Ed.2d 351 (1997). In light of the Fifth Circuit's refusal to apply Gaudin retroactively on collateral review because it does not fit within the "watershed" exception in Teague, this Court is of the opinion that the same conclusion applies to Apprendi. Courts in other Circuits have similarly held that Apprendi is not applicable on collateral review. See United States v. Sanders, 247 F.3d 139, 146 (4th Cir. 2001); United States v. Murphy, 268 F.3d 599 (8th Cir. 2001); and Jones v. Smith, 231 F.3d 1227, 1237-38 (9th Cir. 2000). In addition, a growing number of District Courts, including the United States District Court for the Northern District of Texas, have also concluded that Apprendi is not retroactively applicable to cases on collateral review. See e.g., United States v. Winter, No. 3:96-CR-0326-P (N.D.Tex. Jan. 23, 2001) (finding that Teague bars retroactive application of Apprendi to collateral review); United States v. Brown, 2000 WL 1880280 *4 (N.D.Tex. Dec. 28, 2000); Klein v. United States, 125 F. Supp.2d 460 (D.Wyo. 2000); United States v. Gibbs, 125 F. Supp.2d 700 (E.D.Pa. 2000); Ware v. United States, 124 F. Supp.2d 590 (M.D.Tenn. 2000); United States v. Johnson, 126 F. Supp.2d 1222 (D.Neb. 2000); United States v. Joseph, 2000 WL 1789989 *2 (E.D.La. Dec. 5, 2000); and West v. United States, 123 F. Supp.2d 845 (D.Md. 2000); United States v. Pittman, 120 F. Supp.2d 1263 (D. Ore. 2000). The Court finds the reasoning in those cases sound. Based upon the nonretroactivity principle of Teague, Movant's Apprendi claim is not cognizable on collateral review. Accordingly, to the extent Movant claims his counsel was ineffective in failing to raise an Apprendi claim, his claim should be denied.
Supplement should be denied as time-barred
In addition to conducting a de novo review of the Magistrate Judge's R R, the Court must address Movant's Supplement. Before the Court can make a substantive analysis of Movant's claims as they are presented in his Supplement, it must determine whether it can accept the additional allegations or whether it should dismiss the Supplement as time-barred. When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132 § 105, 110 Stat. 1214 (Apr. 24, 1996), it imposed a one-year "period of limitation" on all motions made under § 2255. That period begins to run on "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1). In this case, Movant's conviction became final on June 13, 1998, thereby securing a deadline of June 13, 1999 to file his Motion to Vacate. Because Movant did not seek to amend his Motion to Vacate until April of 2001, Respondent argues that the Court should dismiss Movant's Supplement as time-barred.
AEDPA describes four different events that could trigger the limitations period. The relevant time, for purposes of this motion, is the date judgment became final. Here, because Movant filed a notice of appeal, Judgment became final on June 13, 1998, ninety days after the Court of Appeals entered its final mandate denying Movant's appeal. SUP. CT. R. 13.1 (deadline for filing petition for writ of certiorari). Given this date, it was incumbent upon Movant to file his Motion to Vacate no later than June 13, 1999, one year after his Judgment became final. Movant filed his original Motion to Vacate on March 16, 1999.
While Movant's original § 2255 Motion to Vacate came within the limitation period, Movant did not proffer his Supplement until April 2, 2001. The Supplement is therefore time-barred, and should be struck, unless the timely first Motion to Vacate subsumes it pursuant to the "relation back" doctrine. When determining whether a supplement to an original motion to vacate should be considered as time-barred, the Fifth Circuit has adopted the principles found in Federal Rule of Civil Procedure 15(c) ("Rule 15(c)"). United States v. Saenz, 282 F.3d 354, 355-56 (5th Cir. 2002). In Saenz, the Fifth Circuit applied Rule 15 to § 2255 proceedings and determined that "[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Id. (citing FED. R. CIV. P. 15(c)(2)). Accordingly, while amendments that expand upon or clarify facts previously alleged will typically relate back, those that significantly alter the nature of a proceeding by injecting new and unanticipated claims are treated far more cautiously. Bowles v. Reade, 198 F.3d 752, 762 (9th Cir. 1999) ("If the amended complaint alleged a new claim for relief that arose out of different conduct or transactions it would not relate back to the original complaint."); FDIC v. Conner, 20 F.3d 1376, 1385-86 (5th Cir. 1994) ("The theory that animates this rule is that 'once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading.'" (citations omitted)). 6A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1497, at 84 (2d ed. 1990).
In the context of § 2255 amendments, courts in general have taken a relatively consistent approach to the "relation back" doctrine. Although Rule 15(c) could be read to mean that the relevant "occurrence" is the claimant's trial and sentencing, this interpretation has been resisted, and with good reason. In most cases, a prisoner's claims for collateral relief will arise out of the same criminal conviction; therefore, if the defendant's trial and sentencing are construed to be the "occurrence," virtually any purported amendment will relate back. Such a result would be difficult to square with Congress' decision to expedite collateral attacks by placing stringent time restrictions on § 2255 motions to vacate. United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000); United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000); Davenport v. United States, 217 F.3d 1341, 1345-46 (11th Cir. 2000); and United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999).
For example, in United States v. Craycraft, the Eighth Circuit held that an untimely claim of ineffective assistance of counsel for not filing an appeal did not relate back to timely claims of ineffective assistance of counsel for not pursuing a downward departure, not objecting to the characterization of the drugs, and not raising challenges to his prior state conviction. Craycraft, 167 F.3d at 456-57. The court observed that amendments to a pleading under Rule 15(c) "relate back" "only if the claim asserted in the original pleading and the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence." Id. at 457. The court determined that "[i]f the ineffective conduct alleged by Craycraft in his first petition cannot be said to have arisen out of the same set of facts as his amended claim, his amendment cannot relate back and his claim must be time-barred since it was filed after the statutory period of limitation." Id. The court concluded that counsel's "[failure] to file an appeal is a separate occurrence in both time and type from a failure to pursue a downward departure or failure to object to the type of drugs at issue." Id.
As emphasized by the Eighth Circuit, "[t]he rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitation were intended to provide." Id. The court noted "Craycraft's original complaint alleged deficiencies of representation distinctly separate from the deficiency alleged in his amendments." Id. Thus the Eighth Circuit concluded that "[w]e cannot say that his original petition would provide notice of such a different sort of theory" and "[t]herefore, the amendment cannot relate back under Rule 15(c) and it must be time barred." Id.
In United States v. Pittman, the movant sought to amend his timely-filed § 2255 motion to vacate by asserting claims unrelated to any claim in his original motion to vacate. 209 F.3d at 315-16. In his first motion to vacate, the defendant alleged that the sentencing court lacked jurisdiction to impose an enhanced sentence based on prior convictions, the enhancement was improper, and the Government had not proved, by a preponderance of the evidence, that the drugs at issue were crack cocaine. Id. In his amended motion to vacate, he asserted that counsel's failure to appeal constituted ineffective assistance, and the sentencing court improperly enhanced his sentence for obstruction of justice. Id. In upholding the district court's denial of the defendant's request to amend, the Fourth Circuit held that the "new claims do not relate back to his original claims because they arise from separate occurrences of both time and type." Id. at 318 (quotation omitted). Concerning the new enhancement for obstruction of justice claim, the Fourth Circuit stated that "[w]hile this claim has the same form as the original claims for improper enhancement, it arises out of wholly different conduct." Id. The Fourth Circuit unequivocally rejected defendant's argument that his new claims should relate back because the "'occurrence' for purposes of Rule 15(c) should be the entire trial and sentencing proceeding." The court reasoned that to allow amendment simply because the amended claims relate to the same trial and sentencing proceedings as those in the original motion to vacate "would undermine the limitations period set by Congress in the AEDPA." Id.
Lastly, in Davenport v. United States, the defendant timely filed a § 2255 motion to vacate raising four claims, three concerning alleged errors in his trial and sentencing and a fourth alleging that his counsel was ineffective for failing to raise the first three. 217 F.3d at 1342. After the Government responded, the defendant sought to dismiss his motion to vacate without prejudice or, in the alternative, to amend. Id. at 1343. The court denied the motion to dismiss, but granted the defendant permission to amend. In his amendment, the defendant raised three more ineffective assistance of counsel claims based on different conduct. Id. In determining that the new claims raised in the defendant's amended motion to vacate were untimely and could not be saved by the relation back provision of Rule 15(c)(2), the Davenport court noted that,
[i]n his original § 2255 motion, Davenport claimed his counsel was ineffective for not objecting that the drugs Davenport had were not "crack cocaine," because they lacked sodium bicarbonate, for not objecting to the drug weight as improperly including certain moisture content, and for not asserting that the government allowed its witness to perjure himself by claiming he expected no benefit. In contrast, Davenport's three new claims were that his counsel was ineffective for (1) allowing Davenport to be sentenced based on three grams of cocaine that were not part of the same course of conduct as the other forty-nine grams of cocaine, (2) relying on a summary lab report instead of requesting the complete lab report, and (3) failing to advise him that a plea agreement might be possible.
Id. at 1346. The Court further explained that
Although Davenport's original § 2255 motion challenged the moisture content and the lack of sodium bicarbonate in the drugs and counsel's failure to raise those issues, his original motion gives no indication that three grams in one drug transaction were not part of the same course of conduct or a common scheme of the other larger drug transaction and does not allege that his counsel was ineffective for not exploring this issue. The original claims thus dealt with the chemical makeup of the drugs, whereas the amended claims addressed the relationship between the drug transactions and his counsel's having improperly relied on a one-page lab summary instead of obtaining the full eleven-page lab report. Regarding the new claim asserting counsel's failure to advise Davenport of a possible plea agreement, Davenport's original § 2255 motion contains no mention of any such pre-trial activity or inactivity. Id. Thus, the court in Davenport found that defendant's three new claims did not arise out of the same set of facts as his original claims, but arose from separate conduct and occurrences in both time and type. Id.
Turning to the instant case, the following represents a summary of Movant's original claims and how his new allegations may relate. In Movant's original Motion to Vacate, he claims that counsel failed to properly investigate his case. In contrast, Movant now claims that counsel failed to investigate backgrounds of Government witnesses, that he failed to prepare for trial, and that he spent all efforts trying to work out a plea agreement.
Movant also originally claimed that Counsel failed to properly brief Movant regarding evidence against him and/or adequately communicate with Movant during the pendency of his case. Movant now raises the following grounds for relief in his Supplement: counsel's failure to discuss the strength of government's case, the lack of defenses raised by counsel, counsel's inability to prevail at trial and/or trial strategy, counsel's failure to obtain witnesses to testify on Movant's behalf, counsel's failure to ask Movant any questions regarding the government's witnesses, counsel's failure to divulge the existence of two proposed plea agreements, counsel's failure to inform Movant of the necessity to inform the Court of Movant's correct identity and that failure to divulge his true identity would jeopardize his credibility with the government, counsel's failure to inform Movant that he would not be his trial attorney until the week prior to trial, counsel's failure to advise Movant on his interview for the presentence report investigation, counsel's failure to inform Movant of acceptance of responsibility and explain its importance when being sentenced, and counsel's failure to provide the legal significance of proceeding to trial as opposed to accepting a plea agreement.
Lastly, Movant claims in his original Motion to Vacate that counsel failed to file timely objections to the Pre-Sentence Report and/or failed to investigate matters alleged in the Pre-Sentence Report. Now, Movant specifically claims that counsel failed to investigate testimony concerning a shed that allegedly contained 2000 pounds of marijuana, that counsel failed to request an evidentiary hearing in order to cross-examine government witnesses, and that counsel failed to note in his objections and sentencing memorandum that Movant already accepted responsibility.
The Court recognizes that in cases in which such notice has been afforded, for example where the movant's amendment seeks merely to elaborate upon his earlier claims, this effort should not generally be barred by the statute of limitations. Dean v. United States, 278 F.3d 1218, 1222 (11th Cir. 2002) ("When the nature of the amended claim supports specifically the original claim, the facts there alleged implicate the original claim, even if the original claim contained insufficient facts to support it. One purpose of an amended claim is to fill in facts missing from the original claim."); Duffus, 174 F.3d at 337 ("Certainly the court could have permitted an amendment to clarify a claim initially made."). However, in cases such as this one, where one attempts to add claims that were not properly alleged in the original motion to vacate so as to provide proper notice, any attempt to add these additional claims should be denied.
With the filing of Movant's Supplement, the Government and the Court were put on notice for the first time of Movant's theories and allegations included therein. For example, this is the first time Movant makes such claims regarding Government witnesses, the plea agreement, or counsel's failure to prepare for trial. There is no mention in Movant's original Motion to Vacate of any of the proposed amendments within the Supplement. In essence, the proposed amendments raise issues which relate to Movant's trial and sentencing as a whole and not to the specific allegations made in his original Motion to Vacate. Movant's original claims are so broad that any claims from arraignment to sentencing could fit within the parameters of Movant's original Motion to Vacate. To allow any of Movant's proposed amendments would in fact circumvent the purpose of the AEDPA and Congress' decision to expedite collateral attacks by placing stringent time restrictions on § 2255 motions to vacate. See Pittman, 209 F.3d at 318 (stating that to allow untimely amendments bringing new claims arising out of the same trial proceeding as the original claims "would undermine the limitations period set by Congress in the AEDPA"); United States v. Duffus, 174 F.3d 333, 337 (3rd Cir. 1999) (holding that granting motion to amend "would have frustrated the intent of Congress that claims under 28 U.S.C. § 2255 be advanced within one year after a judgment of conviction becomes final").
Wherefore, not only do the claims and legal theories Movant wishes to add run the full gambit of his trial and sentencing, it is impossible to say that Movant's original Motion to Vacate would provide notice of the different theories presented in Movant's Supplement. According to the principles of Rule 15(c), such lack of notice is a prelude to striking the Supplement as time-barred. Craycraft, 167 F.3d at 457; Davenport, 217 F.3d at 1345. The Court cannot allow a Supplement which would in effect allow the Movant to file his Motion to Vacate all over again. Therefore, under the circumstances here, the "relation back" doctrine of Rule 15(c) cannot be applied to save Movant's ineffective assistance of counsel claims.
Ineffective Assistance of Counsel
Although the Court finds Movant's Supplement to be time-barred, there is one ineffective assistance of counsel claim that the Court would still like to address. Movant argues within his original Motion to Vacate that counsel failed to advise him of the possible sentence and of how the Sentencing Guidelines ("Guidelines") might have applied to his case if he had pled guilty. Furthermore, Movant claims within his Supplement that counsel never explained how sentences were actually calculated under the Guidelines and that by proceeding to trial, he most assuredly received a sentence which was at least two or three levels higher under the Guidelines.
The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v. Washington:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In summary, Movant must establish both deficient performance and prejudice before he is entitled to relief.
In this case, Movant claims his counsel did not discuss "the possibility of an increased sentence based upon an obstruction of justice enhancement. He never attempted to calculate Mr. Islas' Criminal History score under the Federal Sentencing Guidelines, a calculation that is essential to advise a client of the risks of proceeding to trial and losing." Mov's Supplement at 6. More specifically, Movant claims that, had he been advised by his counsel of the various ways a defendant's sentence could be enhanced or reduced pursuant to the Guidelines, he would have pled guilty instead of going to trial.
First, the Court finds that Movant fails to show how his sentence would be different had he pled guilty. For example, the Court could have found the same "relevant conduct" and "criminal history points," and the same "aggravating role" and "obstruction of justice" enhancements if Movant pled guilty as opposed to going to trial.
And second, with respect to the possibility of acceptance of responsibility, the Court is also unconvinced that Movant would have received such a reduction had be pled guilty. The entering of a plea (even an unequivocal guilty plea) does not automatically constitute acceptance of responsibility. U.S. Sentencing Guidelines Manual § 3E1.1 application note 3 ("A defendant who enters a guilty plea is not entitled to an adjustment under this section as a matter of right."); United States v. Harlan, 35 F.3d 176, 181 (5th Cir. 1994) (discussing acceptance of responsibility departure in context of Alford plea). A defendant must affirmatively demonstrate to the district court that he is entitled to the downward adjustment. United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999). Because Movant has failed to affirmatively demonstrate he would be entitled to a downward adjustment based on acceptance of responsibility, he fails to establish that his counsel was ineffective in failing to inform Movant of the possibility.
CONCLUSION
Having conducted a de novo review of those portions of the RR to which Movant filed objections, the Court agrees with Judge Garney's findings. Furthermore, with respect to Movant's Supplement, the Court finds that it should be stricken as time-barred. Therefore, the Court is of the opinion that the RR filed in this cause should be approved and adopted and that Movant's Motion to Vacate should be denied.
Accordingly, IT IS HEREBY ORDERED that United States Magistrate Judge Norbert J. Garney's Report and Recommendation filed in this cause is APPROVED and ADOPTED.
IT IS FURTHER ORDERED that Movant Cesar Islas-Alvarez' Motion to Vacate, Set Aside or Correct Sentence filed pursuant to 28 U.S.C. § 2255 is DENIED.
IT IS FINALLY ORDERED that Movant Cesar Islas-Alvarez' "Supplemental Memorandum of Points and Authorities in Support of Motion to Vacate" is STRICKEN FROM THE RECORD as time-barred.