Opinion
09 Civ. 2179 (NRB) 00 Cr. 1008 (NRB)
01-23-2013
XAVIER WILLIAMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
I. Introduction
On July 8, 2005, Xavier Williams (the "petitioner") was convicted by a jury on charges stemming from his participation in a violent criminal organization involved in narcotics trafficking. On October 7, 2005, petitioner was sentenced by this Court to life imprisonment. Petitioner's conviction and sentence were affirmed by the Second Circuit on October 23, 2007, United States v. Williams, No. 05-6036-cr, 2007 WL 3105760 (2d Cir. Oct. 23, 2007) (summary order), and the Supreme Court denied certiorari on February 19, 2008, Williams v. United States, 552 U.S. 1223 (2008).
On March 9, 2009, petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. This Court denied that petition on July 28, 2011. Williams v. United States, Nos. 00 Cr. 1008, 09 Civ. 2179, 09 Civ. 3493, 09 Civ. 2535, 2011 WL 3296101 (S.D.N.Y. July 28, 2011). Petitioner filed a Notice of Appeal on September 20, 2011. On April 18, 2012, while petitioner's appeal from the denial of his habeas petition was pending, petitioner filed in this Court a Petition for Leave to Amend His Section 2255 Motion. On June 11, 2012, we directed the Clerk of the Court to return petitioner's submission to him because we lacked jurisdiction in light of the pending appeal.
The next day, on June 12, 2012, petitioner refiled his motion to amend his habeas petition, originally filed on April 18, 2012. One week later, on June 19, 2012, the Second Circuit issued a mandate dismissing petitioner's appeal. Following the Second Circuit's ruling, on June 26, 2012, this Court issued a Memorandum and Order denying petitioner's motion to amend his habeas petition. Williams v. United States, Nos. 09 Civ. 2179, 00 Cr. 1008, 2012 WL 2497260 (S.D.N.Y. June 27, 2012).
On July 23, 2012, petitioner filed his Motion and Memorandum of Law to Alter or Amend the District Court's Order Entered June 26, 2012 (the "Motion"). On October 5, 2012, petitioner filed his Petition for Leave to Amend his Section 2255 Motion (the "Petition"). For the reasons stated below, petitioner's Motion is denied and his Petition is construed as a second or successive habeas petition and, accordingly, transferred to the United States Court of Appeals for the Second Circuit.
II. Discussion
A. Petitioner's Motion
Petitioner moves, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend our Memorandum and Order of June 26, 2012, which denied his initial motion to amend his habeas petition. Petitioner argues that "the district court committed manifest error when it disregarded controlling law which, if examined, might reasonably have led to a different result." Pet'r's Mot. and Mem. of Law to Alter or Amend the District Court's Order Entered June 26, 2012 (July 23, 2012), at 3 [hereinafter Pet'r's Rule 59(e) Mot.]. Specifically, petitioner argues that we misapplied Warren v. Garvin, 219 F.3d 111 (2d Cir. 2000), and erroneously failed to follow Whab v. United States, 408 F.3d 116 (2d Cir. 2005), and Ching v. United States, 298 F.3d 174 (2d Cir. 2002). Pet'r's Rule 59(e) Mot. For the reasons discussed below, petitioner's arguments are unconvincing.
We will first consider whether we correctly ruled that petitioner could not amend his petition. Cognizant that petitioner is proceeding pro se and thus his submissions "should be liberally construed to raise the strongest argument that [they] suggest[]," Voss v. United States, 360 F. App'x 239, 240 (2d Cir. 2010) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)), we will then consider whether we would still have denied petitioner's motion if we had construed it as a new habeas petition.
To start, we correctly determined that an amendment to petitioner's original habeas petition would not have been proper. For one, an amendment would not have been timely. The one-year period of limitation under section 2255 commenced on February 19, 2008, the date on which petitioner's conviction became final. See 28 U.S.C. § 2255(f) (2006); Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012) (citing Clay v. United States, 537 U.S. 522, 527 (2003)). However, petitioner did not file his motion to amend his habeas petition until June 12, 2012, after the period of limitation elapsed. Moreover, petitioner's motion could not "relate back" to the date on which the original habeas petition was filed because the original petition had been dismissed and petitioner's appeal had been dismissed, thus there was "no pleading to which to relate back." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). Contrary to petitioner's argument, Warren v. Garvin does not "pertain[] to cases in which claims comprising initial habeas motion(s) were 'time-barred,'" Pet'r's Rule 59(e) Mot. 5, but rather governs cases, such as the case at bar, in which a petitioner attempts to amend a habeas petition that was timely filed but dismissed for other reasons. Warren, 219 F.3d 111.
The other possible triggers for the one-year period of limitation did not apply to petitioner's June 12, 2012, motion to amend his habeas petition. The motion was not filed following the removal of an impediment "created by governmental action in violation of the Constitution or laws of the United States," did not assert a right that "ha[d] been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review," and did not rely on facts that could have been discovered only after his judgment of conviction became final. 28 U.S.C. § 2255(f) (2006).
Although "the limitations period for filing habeas petitions may be equitably tolled," equitable tolling is available only "when 'extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren, 219 F.3d at 113 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)). Here, not only did petitioner fail to allege "extraordinary circumstances" that prevented him from filing his motion to amend until June 12, 2012, but such "extraordinary circumstances" could not have existed, given that petitioner filed his original habeas petition on March 9, 2009, and the original petition, as explained below, contained essentially all of the claims petitioner sought to assert in his June 12, 2012, motion.
More broadly, Whab v. United States, 408 F.3d 116 (2d Cir. 2005), indicates that a district court should not entertain a motion to amend a habeas petition where the court does not have simultaneously before it both the original petition and the motion to amend. Id. The Second Circuit reasoned:
[I]n the instant case, the district court never had the two petitions before it simultaneously. Before the subsequent petition was filed, the initial petition had already moved to appellate proceedings. This court has since denied a [Certificate of Appealability], so that the earlier petition will not be before the district court when this petition enters its docket. We can see no reason in these circumstances to instruct the district court to treat the new petition as a motion to amend the initial petition.Id. at 119. Subsequent decisions interpreting Whab have confirmed that a motion to amend a habeas petition is improper when the district court does not have that petition simultaneously before it. See D'Amico v. Conway, No. 04 Civ. 2253, 2008 WL 5819622, at *2 (S.D.N.Y. Oct. 30, 2008) ("[P]etitioner's request to amend the original petition is procedurally inappropriate because his two habeas petitions were never, and will never be, before this Court simultaneously."); Lynch v. Lord, No. 01-CV-0641, 2008 WL 343085, at *5 n.4 (W.D.N.Y. Feb. 6, 2008) ("Whab suggests that this Court need not treat the subsequent petition filed by [petitioner] as a motion to amend her previous petition. As in Whab, because the Second Circuit ultimately denied a certificate of appealability regarding [the] first petition, the two petitions will not be before this Court simultaneously. Therefore, there is no longer a first Petition to amend." (internal citations omitted)); Breeden v. Ercole, No. 06 CV 3860, 2007 WL 3541184, at *1 (E.D.N.Y. Nov. 14, 2007) ("[A]s in Whab, because the Second Circuit ultimately denied a certificate of appealability, the two petitions will not be before this Court simultaneously. Under Whab, this Court need not treat the instant petition as a motion to amend the prior petition . . . ." (internal citation omitted)).
Here, as of June 26, 2012, the date on which we denied petitioner's initial motion to amend his habeas petition, the Second Circuit had issued a mandate dismissing petitioner's appeal of our denial of his original habeas petition. This Court, therefore, did not have simultaneously before it both petitioner's original habeas petition and his motion to amend that petition. Consequently, petitioner's motion to amend was improper and we correctly denied the motion.
Petitioner erroneously interprets Whab and Ching v. United States, 298 F.3d 174 (2d Cir. 2002), to indicate that because his motion was "filed before adjudication of the initial habeas motion [became] final," the motion to amend was proper. Pet'r's Rule 59(e) Mot. 6. In Whab, although the Second Circuit held that the habeas petition at hand was not a "second or successive" petition because it was filed before adjudication of the first habeas motion became final, the Circuit explicitly declined to instruct the district court to construe the petition as a motion to amend because the district court would not have had before it both the original petition and the motion to amend. Whab, 408 F.3d 116. In Ching, the Second Circuit addressed a situation, distinguishable from the case at bar, in which both the original habeas petition and the motion to amend that petition were simultaneously before the district court. Ching, 298 F.3d 174.
Petitioner also cites Negron v. United States, 394 F. App'x 788 (2d Cir. 2010), to no avail. In Negron, although the Second Circuit acknowledged that "in general, when a [section] 2255 motion is filed before adjudication of an initial [section] 2255 motion is complete, the district court should construe the second [section] 2255 motion as a motion to amend the pending [section] 2255 motion," id. at 793 (quoting Ching, 298 F.3d at 177) (emphasis in original), the Circuit cautioned that "[s]uch treatment, however, is not appropriate in all cases," id. The Circuit reasoned: "A party seeking to amend following the entry of judgment must first have that judgment vacated or set aside by filing a motion under either Fed. R. Civ. P. 59(e) or 60(b)." Id. In that case, a motion to amend would not have been proper because the district court's judgment denying the petitioner's initial habeas petition had not been vacated or set aside. Id. Here, similarly, our decision of July 28, 2011, denying petitioner's habeas petition has not been vacated or set aside; rather, petitioner's appeal was dismissed and his petition for certiorari denied. Contrary to petitioner's argument, therefore, Negron does not indicate that his motion to amend of June 12, 2012, was proper.
Even if we had construed petitioner's initial motion to amend his original habeas petition as a new habeas petition, it would still not have been proper. The motion would have needed to meet the normal requirements for habeas petitions, as it was filed while petitioner's appeal of our denial of his original habeas petition was pending and thus would not have been subject to the gatekeeping provisions applicable to "second or successive" petitions under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2255(h); Hoffenberg v. United States, 333 F. App'x 625, 628 (2d Cir. 2009) (summary order). One such requirement is the one-year period of limitation, which, as discussed above, the motion would have failed to meet. See 28 U.S.C. § 2255(f).
Another requirement is that a habeas petition must not constitute abuse of the writ. The Second Circuit has held that even when a habeas petition is not technically "second or successive" for purposes of the AEDPA, "[t]raditional doctrines, such as abuse of the writ, continue to apply." Hoffenberg, 333 F. App'x at 629 (quoting Whab, 408 F.3d at 119 n.2) (internal quotation marks omitted). A claim that "'was, or could have been, raised in an earlier petition' is generally considered an abuse of the writ." Id. (quoting James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)); see also Agoro v. United States, No. 11 Civ. 1818, 2011 WL 1330771, at *2 (S.D.N.Y. Apr. 4, 2011) ("The doctrine of abuse of the writ bars claims that could have been or were raised in an earlier habeas petition."). An exception exists where the petitioner "is able to show cause for failing to raise the earlier claim (or seeking to raise the same claim twice) and any resulting prejudice." Agoro, 2011 WL 1330771, at *2. Finally, district courts "have the power to dismiss a habeas corpus petition sua sponte for abuse of the writ." Id. (citing Femia v. United States, 47 F.3d 519 (2d Cir. 1995)).
Here, petitioner's initial motion to amend his original habeas petition would have constituted abuse of the writ because the two "new" claims petitioner advanced "w[ere], or could have been, raised in [the] earlier petition." Hoffenberg, 333 F. App'x at 629 (quoting James, 308 F.3d at 167) (internal quotation marks omitted). Petitioner's first "new" claim was that "trial counsel provided ineffective assistance of counsel when he failed to object to the drug quantity at sentencing and in the presentence report." Pet'r Xavier Williams Mem. of Law in Supp. of His Petition for Leave to Amend His Section 2255 Mot. (Apr. 25, 2012) 3 [hereinafter Pet'r's Initial Mot. to Amend]. However, petitioner had made the same argument in his original habeas petition: "petitioner's counsel was ineffective when he failed to object to the drug quantity at sentencing and in the presentence report." See Pet'r's Mot. to Vacate Conviction and Sentence Under 28 U.S.C. Section 2255 (Mar. 9, 2009) 32 [hereinafter Pet'r's Original Habeas Pet.]. Moreover, all of the facts that petitioner alleged in support of this argument in his initial motion to amend were known to petitioner by the time of sentencing. Additionally, all of the binding legal authority that petitioner cited in support of this argument could have been cited in his original petition. To whatever extent the initial motion to amend alleged facts or cited binding legal authority that petitioner failed to allege or cite in his original petition, petitioner did not show cause for this failure.
Petitioner's second "new" claim was that "trial counsel's failure to request a Fatico hearing prior to sentencing regarding the credibility of Richard Feliciano, Victor Mercado and Jason Protinick rendered his assistance constitutionally deficient." Pet'r's Initial Mot. to Amend 11; see also United States v. Fatico, 579 F.2d 707 (2d Cir. 1978). Specifically, petitioner argued that his trial counsel should have challenged these witnesses' testimony regarding the quantity of drugs that petitioner distributed, which testimony we relied on in sentencing petitioner. Pet'r's Initial Mot. to Amend 11-18; see also Sentencing Tr., Oct. 7, 2005, at 6. However, in his original habeas petition, petitioner had challenged not only the quantity of drugs attributed to him for sentencing purposes, see Pet'r's Original Habeas Pet. 32-37, but also the specific testimony regarding drug quantity of, inter alia, Messrs. Feliciano, Mercado, and Protinick, id. at 33-36. Even if petitioner's original habeas petition did not articulate that counsel should have challenged these witnesses' testimony through a Fatico hearing, the petition contained the same essential argument, namely that counsel provided ineffective assistance by failing to challenge the witnesses' testimony for purposes of sentencing. Moreover, all of the facts that petitioner alleged in support of his "new" Fatico hearing argument were within his knowledge no later than the time of sentencing, and all of the binding legal authority petitioner cited in support of this argument could have been cited in his original petition. As with the first "new" claim, to whatever extent the initial motion to amend alleged facts or cited binding legal authority in support of the Fatico hearing argument that petitioner failed to allege or cite in his original petition, petitioner did not show cause for this failure. Therefore, even if we had construed petitioner's June 12, 2012, motion to amend as a new habeas petition, we would have denied the motion for the independent reasons that it was (1) untimely, and (2) an abuse of the writ.
In short, our Memorandum and Order of June 26, 2012, correctly denied petitioner's motion to amend his habeas petition and would not have reached a different outcome had it construed the motion as a new habeas petition. Accordingly, petitioner's Motion is denied.
B. Petitioner's Petition
Petitioner's present motion to amend his original habeas petition adds one new claim: that "trial counsel was constitutionally ineffective for refusing to negotiate petitioner's offer of 20 to 25 years with prosecutors." Pet'r Xavier Williams Mem. of Law in Supp. of His Pet. for Leave to Amend His Section 2255 Mot. (Oct. 5, 2012) 3. Petitioner alleges that he communicated to his attorney his willingness to accept a plea bargain of twenty to twenty-five years in custody, but that the attorney failed to negotiate this offer with the government. Id. at 3-5. According to petitioner, counsel's deficient performance prejudiced him because he would otherwise have received a sentence of no more than thirty years in custody (the government's apparent offer) rather than a sentence of life imprisonment. Id.
This claim is not proper whether construed as an amendment to petitioner's original habeas petition or as a new habeas petition. First, petitioner's motion is not proper as presented -- as a motion to amend the original habeas petition. For one, the motion is not timely. The start date for the one-year period of limitation is the date on which petitioner's judgment of conviction became final, February 19, 2008. Although petitioner cites Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), these decisions did not restart the clock on the period of limitation by establishing a right "newly recognized by the Supreme Court." 28 U.S.C. § 2255(f). Both decisions applied the standard for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668 (1984), to the particular facts at hand. See Frye, 132 S. Ct. at 1409 (stating that the decision involved the "application of Strickland to the instance[] of an uncommunicated, lapsed plea"); Lafler, 132 S. Ct. at 1384 (addressing the question of "how to apply Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial"); see also In re Perez, 682 F.3d 930, 933 (11th Cir. 2012) ("Lafler and Frye are not new rules because they were dictated by Strickland."). Indeed, the Supreme Court noted in Frye that its analysis "d[id] nothing to alter the standard laid out in Hill [v. Lockhart, 474 U.S. 52 (1985)]." Frye, 132 S. Ct. at 1409; see also Hill, 474 U.S. at 57 ("Although our decision in Strickland v. Washington dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, . . . the same two-part standard seems to us applicable to ineffective-assistance claims arising out of the plea process."). The one-year period of limitation therefore commenced on February 19, 2008, and terminated on February 19, 2009, but petitioner's present motion to amend was not filed until October 5, 2012. See 28 U.S.C. § 2255(f); Gonzalez v. Thaler, 132 S. Ct. 641, 653 (2012) (citing Clay v. United States, 537 U.S. 522, 527 (2003)). Moreover, petitioner's motion cannot "relate back" to the date on which the original habeas petition was filed because the original petition has been dismissed and petitioner's appeal has been dismissed, thus there is "no pleading to which to relate back." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000).
The other possible triggers for the one-year period of limitation also do not apply here. Petitioner's present motion to amend was not filed following the removal of an impediment "created by governmental action in violation of the Constitution or laws of the United States" and does not rely on facts that could have been discovered only after his judgment of conviction became final. 28 U.S.C. § 2255(f). Petitioner asserts that, prior to the date of his conviction, he knew that his counsel (allegedly) refused to present his offer of twenty to twenty-five years in custody to the government. See Williams Affirmation (Sept. 28, 2012) ¶¶ 4-6. Moreover, even if petitioner's present motion relied on the fact that the government had offered thirty years in custody, and even if petitioner did not know about that offer until after his judgment of conviction became final, petitioner became aware of the offer no later than December 6, 2010, when he filed a submission with the Court that discussed it. Pet'r's Response to David Stern's Aff. (Dec. 6, 2010) 1. If the period of limitation had commenced on December 6, 2010, petitioner's present motion would still have been untimely.
An amendment would also be improper because this Court has never had simultaneously before it both petitioner's original habeas petition and the present motion to amend that petition. See Whab v. United States, 408 F.3d 116, 119 (2d Cir. 2005). Therefore, if petitioner's motion is construed as it was framed, as a motion to amend, it must be denied.
Finally, if petitioner's motion is construed as a new habeas petition, it would be a "second or successive" petition under the AEDPA. See 28 U.S.C. § 2255(h). In Whab, the Second Circuit held that the adjudication of a habeas petition becomes final at the point when "petitioner's opportunity to seek review in the Supreme Court has expired." Whab, 408 F.3d at 120. Once the adjudication of an original habeas petition becomes final, "the subsequent petition has become 'second or successive' and thus must be returned to the court of appeals for its gatekeeping function." Id.; see also 28 U.S.C. § 2255(h). If a "second or successive" habeas petition is filed in the district court, the district court does not have jurisdiction to consider it and should transfer the petition to the Court of Appeals under 28 U.S.C § 1631. See Torres v. Senkowski, 316 F.3d 147, 151-52 (2d Cir. 2003).
Here, we denied petitioner's original habeas petition on July 28, 2011, and the Second Circuit dismissed petitioner's appeal on June 19, 2012. On September 17, 2012, petitioner's time to petition the Supreme Court for a writ of certiorari elapsed, and the adjudication of his original habeas petition thereby became final. Petitioner did not file the present motion until October 5, 2012. Even using the date on which petitioner signed the present motion, September 28, 2012, the motion would have been submitted after adjudication of the original habeas petition had become final. Accordingly, petitioner's motion, if construed as a new habeas petition, would be a second or successive habeas petition over which we have no jurisdiction. Because we must liberally construe petitioner's pro se motion "to raise the strongest argument that it suggests," Voss v. United States, 360 F. App'x 239, 240 (2d Cir. 2010) (summary order), we construe petitioner's motion as a second or successive habeas petition -- the only framing under which we would not presently deny the motion. We therefore transfer the motion to the Second Circuit pursuant to 28 U.S.C § 1631.
III. Conclusion
For the reasons stated above, petitioner's Motion, seeking to alter or amend this Court's Memorandum and Order of June 26, 2012, is denied. Petitioner's Petition, seeking leave to amend his original habeas petition, is construed as a second or successive habeas petition. The Clerk of the Court shall transfer the Petition, docket entry no. 44 (09 Civ. 2179) and no. 288 (00 Cr. 1008), to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. If the Second Circuit authorizes petitioner to proceed, he may move to reopen the proceeding under this docket number (09 Civ. 2179). This Memorandum and Order resolves docket entry no. 44 (09 Civ. 2179) and nos. 287 and 288 (00 Cr. 1008).
SO ORDERED. Dated: New York, New York
January 23, 2013
/s/_________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
A copy of the foregoing Memorandum and Order has been mailed on this date to the following: Petitioner:
Xavier Williams
02149-748
U.S.P. Allenwood
P.O. Box 3000
White Deer, PA 17887