Opinion
No. 97-0572-CV-W-6, Crim. No. 93-00073-01-CR-W-6
July 25, 2001
MEMORANDUM AND ORDER
On September 27, 2000, movant John A. Mandacina sought leave to file a "Supplemental Motion to Vacate and/or Set Aside Conviction and Sentence Pursuant to 28 U.S.C. § 2255." Movant sought to file his amended motion twenty days after the court entered an order denying all but two grounds presented in the original § 2255 motion — and more than three years after the original motion became fully briefed. The court asked the parties to provide further briefing addressing the timeliness of the amended claims. It also requested further briefing of the original claims relating to the footprint evidence discussed in the Memorandum and Order of September 7, 2000. The requested briefing is now on file, and the pending motions are ready for ruling.
I
The court will adhere to its initial impression that the "footprint" claims are without merit. It refers the parties to its previous observations surrounding the decision to order the Government to make the footprint evidence accessible to movant and his counsel:
The discretionary decision to allow reopening of an issue in an old case is, I acknowledge, a close call. It seems doubtful that the presence of an unidentified person around the time of the killing would be significantly exculpatory, given the "strong evidence" of movant's guilt. United States v. McGuire, 45 F.3d 1177, 1190 (8th Cir. 1995). It is notable that McGuire's guilt is no longer in question. In the interest of justice, however, and possibly tending to implicate a third person in the killing, discovery will be authorized.
Order of Sept. 7, 2000, at 4 n. 2.
The Brady claim fails for a simple reason: there is no genuine contention that the footprint evidence was not available to movant prior to trial. I us trial counsel's affidavit states that counsel concluded that, "after discussions with experts at the Crime Lab, no pertinent or significant information regarding footprints would tend to prove the innocence of the defendant." Moreover, counsel was notified by a letter dated July 6, 1993, that the crime scene Photographs were available at the United States Attorney's office for review and inspection; these photographs included photographs of the footprint impressions left at the crime scene. See "Government's Response" (Doc. 25). Ex. A-D. Whether or not the evidence is "material" under Brady, the Government disclosed it in the first instance.
Nor does the footprint evidence support a meritorious claim that movant was denied effective counsel. Movant must demonstrate that counsel's performance was objectively deficient, meaning that it fell "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). Courts strongly presume that counsel's conduct falls within the wide range of reasonably professional assistance, and that the challenged decision might be considered sound trial strategy under the circumstances presented to counsel at the time.Id. at 689; Fretwell v. Norris, 133 F.3d 621, 624 (8th Cir. 1998).
Movant has not overcome these presumptions. The court rejects movant's argument that the Government's failure to turn over any analysis of the shoe sizes demonstrates that trial counsel cannot have relied upon the Government's analysis of the shoe sizes. Movant is putting words into trial counsel's mouth, for the affidavit states only that counsel spoke with experts at the crime lab. Movant also relies heavily upon analyses later discovered by postconviction counsel, suggesting that the prints were made by an individual with a different shoe size than McGuire's. Yet, the Strickland claim must rest upon information that was either known to trial counsel at the time or that any reasonable attorney would have investigated and discovered. Given the demands placed upon trial counsel facing a murder trial, it cannot be expected that counsel will doggedly investigate every conceivable suggestion that maybe someone else was (also'?) involved. Nor do I believe that counsel may never reasonably rely upon the Government's analysis of evidence; indeed, doing so might free counsel to investigate other leads that he finds more promising:
The Government never asserted the print-marks were McGuire's, thus tactly acknowledging that at some uncertain time another person was there. Neither defense counsel saw much prospect for using this to prove McGuire's absence from the murder scene.
Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Strickland, 466 U.S. at 690-91. In short, movant has not shown why counsel's particular investigation of the footprint evidence was not professionally reasonable at the time. Eight years later, the possible significance of the evidence remains highly speculative.
Furthermore, movant must show that he was prejudiced by counsel's alleged error (or by the Government's non-disclosure). "Prejudice" requires a reasonable probability that, but for counsel's errors, the proceeding would have had a different result. Id. at 694. A reasonable probability is one sufficient to undermine one's confidence in the outcome. Id. At best, movant has demonstrated that McGuire wears a size 9 1/2 shoe, that the footprint in question was made by an individual with a shoe size between 7 and 8 1/2, and that Steven St. John's shoe size is 7 1/2. Putting aside the implausible suggestion that a more thorough footprint investigation would have unearthed movant's recently formulated theory that St. John was the murderer, the evidence shows only that some unidentified person other than McGuire may have been on Larry Strada's property around the time of the murder. While not disputing that the evidence is conceivably relevant, I cannot conclude that its absence makes the verdict fundamentally unreliable, or that a different verdict would have resulted from its presentation to a jury. Contrary to movant's argument, it bears repeating that "(t)here was strong evidence that Mandacina was guilty of the crime of which he was convicted." McGuire, 45 F.3d at 1190. The jury was already aware that Strada had many enemies, and the footprint evidence does not directly undermine the "strong" evidentiary link between the murder and the criminal activities of movant and McGuire — a link described in some detail by the Court of Appeals. Id. at 1180-82.
II
The court next concludes that plaintiffs amended claims are untimely unless they relate back to those originally asserted. Amended claims are permissible only if the amendments themselves satisfy the one year statute of limitations under 28 U.S.C. § 2255. United States v. Craycraft, 167 F.3d 451, 456-67 (8th Cir. 1999). The limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date of 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 the 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 the 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.
Movant's conviction became final before AEDPA's effective date, so the motion was presumptively due on April 24, 1997, the day after it was filed. Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999). The proposed amendments were tendered on September 27, 2000, long after the presumptive deadline.
Movant resorts to subsections (2) and (4) above, but neither argument is availing. As a general matter, the court agrees with the Government that movant has failed to specify in detail (a) the items of evidence supporting the amended claims but omitted from the original claims, (b) the circumstances supporting a contention that each particular item either could not have been timely presented through the exercise of due diligence, or that it was being illegally suppressed, (c) the date at which each item was discovered, and (d) the date at which each item could have been discovered, either through the exercise of due diligence or the removal of governmental interference. Without a more particularized showing by movant, the court cannot even determine the date from which a later one year period might begin to run under 28 U.S.C. § 2255(2) and (4), much less conclude that the amended claims were tendered within that period. The burden of proof rests upon movant, and the court has no duty to scour the record on his behalf.
A few of movant's arguments are more focused, but these are readily rejected. Movant states that his amended claims came to light only after a private investigator discovered the necessary facts, that movant's family lacked the financial resources to pay for a thorough investigation until well after the initial § 2255 motion was filed, and that an earlier presentation of the amended claims was prevented by movant's indigence rather than a lack of due diligence. I do not doubt that many prisoners are indigent, and that indigent prisoners cannot easily investigate habeas claims, but I am unaware of any authority allowing poverty to serve as a basis for extending the limitation period under § 2255(4) or otherwise. United States v. Richardson, 2000 WL 676009, at ** 1 (10th Cir. May 24, 2000) (declining to equitably toll the statute, and observing that "[movant]'s poverty, sadly, is unexceptional."). To the contrary, a movant is expected to conduct a reasonably thorough arid diligent investigation before filing a first motion under § 2255. In re Boshears, 110 F.3d 1538, 1540 (11th Cir. 1997). In effect, § 2255(4) "establishes the principle that a petitioner must conduct a reasonable and diligent investigation aimed at assembling all relevant claims and grounds for relief within a year of entry of final judgment on his conviction," or, in this case, within a year of the statute's effective date. Rodriguez v. United States, 1999 WL 1487600, at *3 (E.D. N.Y. Dec. 23. 1999). Doubtless Congress understood that most prisoners have limited resources, but for better or worse it valued the finality of convictions despite the hardship created by the time limit. In short. section 2255(4) provides no refuge for the prisoner who first asserts timely claims, only to later assert untimely ones after conducting a more thorough investigation.
A consequence of this expectation is that discovery is more limited in postconviction proceedings than in other civil cases. A movant may not rest upon notice pleading to describe generalized claims, then hope to ascertain the specifics during discovery. Rather, discovery is proper only when the movant's "specific allegations how reason to believe" that the movant may be entitled to relief if the facts are more fully developed. Advisory Committee Notes to Rule 6 Governing § 2254 Cases (incorporated into notes to Rule 6 Governing § 2255 proceedings);Smith v. United States, 618 F.2d 507, 509 (8th Cir. 1980) (discovery properly denied when movant merely listed the records he sought and did not state what he hoped to find therein or how they would support his § 2255 motion). Movant now protests that the original motion's broad plea for discovery of "various investigative materials and physical evidence. . . in the possession of the. . . Gladstone police" was never acted upon, but no discovery was proper other than what the court authorized regarding the footprint evidence, which was itself a "close call." For that matter, during the three years that passed after movant's motion became fully briefed, movant never suggested to the court that it should delay a ruling in the interest of discovery, or that an amended motion was being contemplated. The attempt to resurrect a theoretical right to formal discovery, never pressed during the unduly long period before the September ruling, suggests instead that the current motion is doubly untimely. In ordinary civil litigation it would be almost unthinkable to reopen a summary judgment ruling for specific new contentions after an adverse decision.
Movant relies heavily upon a report by the Gladstone Police Department describing an interview of one Donna Borland, taken while the police were investigating the Strada murder. Ms. Borland, who previously maintained a romantic relationship with Mr. Strada, said that she "felt" he had been murdered for providing names and information to the Government relating to his drug activities, that some of the individuals described by Mr. Strada had been indicted within the several months preceding the murder, that almost all of them worked at or frequented Strada's Deli, and that the killing occurred because of drug indictments rather than gambling indictments. Movant's Reply, Ex. A. The "Borland Report" does not list particular names those suspected by Ms. Borland, but the interviewing officer mentioned various names that Ms. Borland confirmed as individuals she suspected even though she was "very hesitant" to give specifics. Movant's investigator interviewed Ms. Borland last summer, and it was confirmed that the names listed on the drug indictments for Steven St. John and others were the same names that she had earlier identified as suspects when speaking with the Gladstone police officer. Movant argues that present counsel did not receive a copy of the report until July 2000, after the investigator located it in the original court file, and that the report bore further investigative fruits — including the investigator's interview with Ms. Borland and other evidence consistent with the hunch that Steven St. John or another was the perpetrator.
Although probative of movant's guilt or innocence, the Borland Report does not provide a basis for extending the statute of limitation. First, far from creating an illegal impediment that kept movant from making an otherwise timely claim based upon the report, see 28 U.S.C. § 2255(2), the Government disclosed the report to counsel prior to the trial. Even though the particular names discussed by Ms. Borland were not disclosed, these could have been discovered through a reasonably diligent investigation — just as the current investigator discovered them by speaking with Ms. Borland himself, and just as present counsel developed an elaborate theory implicating Steven St. John in the few mouths following his discovery of the Borland Report. Evidence that a movant can discover through his own reasonable investigation is not illegally withheld by the Government within the meaning of § 2255(2), or underBrady. United States v. Jones, 160 F.3d 473, 479 (8th Cir. 1998). For that matter, movant's investigator found the report by looking at the original case file, which is hardly a heroic investigative measure. Presumably movant could have searched the file in a more timely fashion, but he chose to rely on the "copy file" that trial counsel gave to postConviction counsel, which apparently omitted the report. Whatever the wisdom of movant's decision, it cannot be attributed to governmental obfuscation.
Even if it were timely, then, a Brady claim based upon the Borland Report and its fruits would be without merit. Movant notes that the Government disclosed the report only about four weeks before trial, but nothing prevented movant from seeking a continuance or conducting an expedited investigation. Movant now asserts that counsel rendered ineffective assistance by failing to investigate the report. That claim is untimely under § 2255 unless it relates back to the original motion.
Nor can it be shown that the Borland Report was only recently discoverable through a diligent investigation under 28 U.S.C. § 2255(4). Counsel knew about the report before the trial and obtained the information in the course of representing movant. Thus, counsel's knowledge is attributable to movant under agency principles.Woods Farmers Cooperative Elevator Co. v. Z- Mega Farms Limited Partnership I, 95 F.3d 693. 699 (8th Cir. 1996) (discussing "the general rule of agency that the principal is chargeable with the knowledge of its agents"). Furthermore. movant could have searched through the original case file in a timely fashion, discovered the report, and developed the same evidence now recounted in the amended motion. Under these circumstances, movant has not demonstrated "why previous attorneys could not have discovered these documents prior to his original habeas filing by exercising the same due diligence his current attorneys employed." In re Magwood, 113 F.3d 1544, 1549 (11th Cir. 1997) (addressing similar provision in 28 U.S.C. § 2244(b)(2)(13)(i)).
Movant also implies. somewhat cryptically, that the Government's failure to disclose statements and testimony from Brock Decastrogiovannimausolf prevented movant from discovering various fruits and derivative fruits of Brock's testimony. Movant's Reply to Court's Memorandum, at 16-20. The Brock evidence underlies a Brady claim in the original § 2255 motion, as well as a claim of newly discovered evidence. Yet, there is no explanation why the fruits described by movant, and presented in the amended motion, could not have been discovered and presented in the original motion filed some years after the events in question, based upon Brock's known statements and testimony.
Movant next contends that the statute should be equitably tolled even if §§ 2255(2) and (4) do not apply. This argument, too, is unavailing. Equitable tolling is appropriate only when "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). The court has already explained why movant could have asserted the amended claims in a timely fashion if he had conducted a timely investigation. Accordingly, a timely filing of the amended claims was not impeded by circumstances beyond movant's control. Nor is equitable tolling justified by virtue of movant's limited resources. Richardson, 2000 WL 676009, at * * 1.
Finally, movant argues that his claims satisfy the "actual innocence" standard, so as to justify their tardy assertion. 1 will assume, without deciding, that the "actual innocence" gateway may excuse an untimely claim as opposed to an abusive or successive one, and that the standard is whether movant has established "that it is more likely than not that no reasonable juror would have convicted him" if presented with the evidence at trial along with that underlying the newly asserted claims.Schlup v. Delo, 513 U.S. 298, 327 (1995); but see 28 U.S.C. § 2255 (requiring "clear and convincing" showing of innocence in order to file a successive motion); 28 U.S.C. § 2254(e)(2)(B) (same showing required under § 2254 if petitioner fails to develop facts in state court).
Even if the Schlup standard applies, movant has not satisfied it. The amended claims, at bottom, all contend that individuals other than movant had greater reason to murder Mr. Strada than movant did, or greater ability to finance a $25,000 hit. The court has already explained its skepticism toward this sort of evidence:
The fact that the Government may have known of other individuals who had a motive to murder Mr. Strada and were suspected in the murder does not undermine the court's confidence in the proceedings. The jury in this case heard evidence that Mr. Strada informed the Government about the criminal gambling activities of a group of' approximately ten people. Even without the introduction of the undisclosed evidence, it would have been clear to the jury that Mr. Strada had made enemies of' a number of potentially dangerous individuals in addition to movant.
Memorandum and Order of September 7, 2000, at 5. Much of the newly introduced evidence is arguably exculpatory and hypothetically admissible at trial, but it is not so convincing that all reasonable jurors would vote to acquit. The court will address the evidence in the approximate order of its presentation.
The showing required of movant is more demanding than the "prejudice" standard underlying the Brady and Strickland claims at issue in the court's previous order. Schlup, 513 U.S. at 327 n. 45.
— The Borland Report, or at least its admissible fruits, suggests that certain figures involved in drug-related crimes may also have had reasons to kill Mr. Strada. It does not suggest that movant had no reason to do so. It would not compel a reasonable jury to reject the evidence upon which movant was convicted, most notably the testimony of Terry Dodds and Tom Earlywine.
— There is evidence that Mr. Strada may have provided information about the drug activities of Steven and Charles St. John, but movant provides no distinct proof that Mr. Strada did provide such information. Even if he had, Steven and Charles St. John would serve as little more than two additional names on a lengthy list of possible enemy/suspects, and movant tellingly declines to rest his claims on any single one of them. In addition to those previously known, movant now attempts to implicate Steven St. John, Charles St. John, Nick LaBruzzo, Jack Lascuola, Pete Simone, and Buddy Mandacina. Whether the evidence relates to Mr. Strada's drug activities or gambling activities, the court remains convinced that the jury already knew that Mr. Strada "had made enemies of a number of potentially dangerous individuals in addition to movant." Movant, too, had reason to be Mr. Strada's enemy. of all enemies or potential enemies, movant was identified as offering $25,000 for the hit.
See Amended Motion, at 5: "Strada was likely giving information and/or was a witness against Steven and Charles St. John."
— Steven St. John's presence with Mr. Strada on the night before the murder is not convincing evidence that he committed the crime.
— The ballistics evidence arguably suggests that Mr. Strada was shot at chose range, but that has minimal value in showing that he was shot by an acquaintance. For that matter. movant provides no evidence that Mr. McGuire and the decedent were strangers.
— The newly presented evidence regarding Frank Angotti does not assist movant. since Mr. Angotti's testimony was admitted only against Mr. McGuire, as dramatically emphasized at trial. In any event, the chain of events that may have prompted Mr. Angotti to ask Mr. McGuire about the murder bears only marginal relevance to the substance of the inquiry — and its incriminating response. Nor would a jury probably reject Mr. Angotti's testimony if informed of the purported immunity (heal described by movant. Indeed, the jury credited Dodds' and Earlywine's testimony despite their deals with the Government.
Mr. Angotti's purported "recantation" is equivocal at best.
— Movant does not specify the details of allegedly undisclosed aspects of Mr. Strada's cooperation with the Government. Therefore, there is no merit to the suggestion that such disclosure would provide a basis for a more effective cross-examination of Mr. Earlywine. Even crediting movant's speculation concerning what Mr. Strada was questioned about, and the further speculation that the questioning would have (a) bolstered Mr. Earlywine's previous statement that others besides movant were involved in making the offer to kill Mr. Strada, (b) undermined his statement at trial that only movant made the offer, and (c) undermined his trial testimony that he incorrectly signed a written statement — erroneously transcribed by an FBI agent — to the effect that Mr. LaBruzzo was present at Chubby's Restaurant along with movant and three others, movant would still be implicated in plotting Mr. Strada's murder whether or not others were also present or involved.
See Amended Motion at 17: "It is incomprehensible to believe that Larry Strada was not questioned about Jack Lascuola's gambling operation and/or other crimes in which Lascuola or his subordinate Nick LaBruzzo may have been involved. It is even more incomprehensible to believe that the Government did not ask Larry Strada questions about Pete Simone."
— The temporal proximity between the murder and a meeting of Mr. McGuire. Mr. Simone and other "organized crime figures" does not persuasively suggest that the meeting was convened to arrange Mr. Strada's murder. Neither does it disprove Earlywine and Dodds' account of a conversation in which movant asked Mr. McGuire to kill Mr. Strada, nor Mr. Earlywine's testimony that movant said that he wanted Mr. Strada to be murdered and that he would pay Mr. McGuire $25,000 to do it. The evidence at trial, then, described the specific conversations that took place, while the newly presented evidence does not. The same must be said of various gatherings at Anthony's. Jennie's, and the Red Front Restaurant, in the absence of competent evidence describing what transpired. Finally, Brock's observation of the meetings described above does not lend newfound weight to her grand jury testimony that Dennis Crouch brought the duffel bag of guns into the Red Front.
For that matter, the evidence described tends to show that McGuire shot Strada, contrary to movants theory that Steven St. John or some other individual was the killer.
— The meetings do not disprove the proposition that McGuire traveled to Kansas City to commit the murder. Movant argues that McGuire was induced to commit the murder during a meeting that preceded it, but, again, there is no convincing evidence showing what transpired at the meeting. The meeting does not sufficiently disprove Dodds' and Earlywine's testimony that movant had earlier agreed to pay McGuire $25,000 to murder Mr. Strada, nor defeat the reasonable inference that McGuire traveled to Kansas City to carry out the hit. McGuire, 45 F.3d at 1186-87.
In sum, the various theories now presented are at most suggestive of a multi-faceted conspiracy. but have little tendency to exonerate movant as a key figure.
III
Another question is whether the amended claims relate back to the original ones. An amendment relates back to the original pleading only if it arises out of the same "conduct, transaction or occurrence." United States v. Craycraft, 167 F.3d 451. 457 (8th Cir. 1999), citing Fed.R.Civ.P. 15(c)(2). Craycraft held that an attorney's failure to perfect an appeal was a "separate occurrence in both time and type" from the originally pleaded failure to pursue a downward departure or to object to the type of drugs at issue. Id. The original Craycraft petition did not provide adequate notice of the amended claim. even though both claims involved counsel's inadequacy. Id.
Movant makes several attempts to relate the amendments back to the original claims. The first of these rests upon the original motions contention that "the government failed to disclose to movant and his trial counsel certain evidence favorable to Movant as required by the applicable rules of criminal procedure and federal case law, including,Brady v. Maryland." Boilerplate generalizations of this sort, however, do not provide adequate notice of particular withholdings of evidence not specifically referred to in the original motion. It is insufficient that the amended claims and the original ones are both Brady claims, just as it was insufficient in Craycraft that both sets of claims alleged ineffective assistance of counsel.
Additionally, movant ignores the "heightened pleading requirements" governing habeas practice. McFarland v. Scott, 512 U.S. 849, 856 (1994). While other civil litigants are permitted to rest upon "notice pleading," a petitioner must "set forth in summary form the facts supporting each of the grounds" asserted. Rule 2(b) Governing § 2255 Proceedings. As explained above, the law presupposes that a movant has performed a thorough investigation prior to filing, and discovery is authorized only to flesh out particularized allegations. Munoz v. Keane, 777 F. Supp. 282. 287 (S.D.N.Y. 1991) (generalized statement of Brady violation did not justify discovery, where defendants did not produce any specific evidence to support claims); Smith v. United States, 618 F.2d 507. 509 (8th Cir. 1980). Notice pleading, by contrast, requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," and the plaintiff may develop the facts through discovery and amendments as long as the claim is brought in good faith. Fed.R.Civ.P. 8(a). The "notice" required of a § 2255 motion, then, effectively differs from that required of a civil complaint. A blanket statement that the Government withheld exculpatory evidence, or that counsel performed ineffectively, is not a "claim" at all if it does not describe the evidence withheld or the ineffective assistance rendered. Since a general statement is not a "claim," it does not provide a basis for relating amended claims to the original pleading.
The relevant rules governing § 2254 and § 2255 proceedings do not materially differ. Both sets of rules permit the court to allow discovery upon a showing of "good cause," amid both require the pleader to "set forth in summary form the facts supporting each of the grounds" asserted.
Movant next asserts that both pleadings allege the same types of Brady claims, specifically, that the Government withheld evidence tending to show that other individuals may have been involved in the crime, as well as evidence that could have impeached the Government's witnesses. Nevertheless, all of the claims involve distinct withholdings of evidence, and only certain withholdings are described in the original motion. For example, the withholding of Brock's statements is distinct from the alleged withholding of the Borland Report. The various items share some of the same evidentiary purposes. but the withholdings themselves are distinct acts. In the context of habeas pleading, I cannot say that the original motion gives fair notice of Brady claims not specifically asserted — and which were actually unknown to movant.
Movant also describes various evidentiary items discovered as a result of Brock's statements. But there is little explanation why any amended claim relates back to the original claims concerning Brock's statements. Even if the other items were derived from Brock's statements. the amended claims stem from separate withholdings of which the Brock claims give no notice.
Movant next contends that the arguments on pages 20-30 of the amended motion relate back to a statement in the original motion that:
Movant respectfully submits that his trial counsel failed to properly investigate and discover evidence, and/or failed to call various witnesses who would have been able to provide testimony in support of movant, and/or failed to fully and thoroughly cross-examine certain witnesses on certain issues which would have been favorable to movant's defense.
Again, the language speaks only of generalized types of failings in counsel's representation. It does not provide distinct "claims" as to which the amended claims might relate back. Similarly, it does not provide fair notice of the particular contentions subsequently developed by counsel and movant's investigator, such as the "close relationship" between Mr. McGuire amid Buddy Mandacina.
Movant's strongest pleading argument concerns the Borland Report. The original motion states that the Government failed to disclose certain exculpatory evidence, "including various physical and other evidence obtained by the Gladstone Police Department and detectives involved in the investigation of Mr. Strada's murder." It further alleges that counsel failed to pursue adequate discovery of "potential testimony and physical evidence obtained by the Gladstone Police Department, including but not limited to [the footprint evidence]." The Borland Report. in turn, was obtained by the Gladstone police, and it contained information suggesting that individuals other than movant may have committed the murder. Despite the facial similarity between the original amid amended claims as to the "time and type" of violations at issue, Craycraft, 167 F.3d at 457. I do not believe that the claims concerning the Borland Report and its fruits relate back to the original motion. A generalized assertion that materials obtained by the Gladstone Police were withheld by the Government or inadequately investigated by counsel does not state a viable claim absent some specification of the materials in question and their exculpatory value. The original motion makes no mention of the Borland Report and gives no notice of its alleged omnission or counsel's failure to investigate it. That is quite likely because postconviction counsel was unaware of the report when drafting the motion, owing to the failure to conduct a timely investigation. Any similarity between the amended claims and the original ones in this regard is only coincidental.
Certain arguments concerning the Borland Report will be summarily rejected based on the preceding paragraphs. These include (a) movant's attempt to tie the Borland Report to a statement in the original motion that the Government failed to disclose all information in which Mr. Strada implicated other persons in criminal activity, as well as the telephone call to John Frankum, and (b) movant's attempts to relate time investigative fruits of the Borland Report to the original motion.
The "relation back" issue concerning the Borland Report does present a reasonably close question, and the court could likely be persuaded to grant a Certificate of' Appealability — if persuaded that the report could reasonably cause a grant of habeas.
IV
Movant's reply to the court's order of last January seeks to assert still more amended claims. These include a claim that the Government withheld evidence regarding the series of events that may have prompted Mr. Angotti to ask Mr. McGuire about the killing, as well as a claim that appellate counsel performed ineffectively by failing to argue that the suppression of certain statements and testimony of Brock prejudiced trial counsel's ability to contest time government's case. The request to add these claims is denied because of their untimeliness, pursuant to the court's previous observations.For the aforementioned reasons, it is hereby
ORDERED that the movant's motion (Docs. 12, 15) to set aside or reconsider the court's memorandum and order and/or permit the filing of a supplemental motion under 28 U.S.C. § 2255 is DENIED. It is farther
ORDERED that movant's "Supplemental Motion" (Docs. 10, 14) to vacate and/or set aside conviction and sentence pursuant to 28 U.S.C. § 2255 is hereby STRICKEN. It is farther
ORDERED that the movant's claims relating to the footprint evidence discovered by the Gladstone Police Department are DENIED. The clerk is directed to enter judgmnent for respondent and against movant.