Filed: Oct. 07, 2016
Latest Update: Oct. 07, 2016
Summary: OPINION AND ORDER JAMES L. GRAHAM , District Judge . On July 18, 2016, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings recommending that this action be dismissed. Although the parties were advised of the right to object to the Magistrate Judge's Report and Recommendation, and of the consequences of failing to do so, and although the Court granted Petitioner an extension of time within to file the objections,
Summary: OPINION AND ORDER JAMES L. GRAHAM , District Judge . On July 18, 2016, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings recommending that this action be dismissed. Although the parties were advised of the right to object to the Magistrate Judge's Report and Recommendation, and of the consequences of failing to do so, and although the Court granted Petitioner an extension of time within to file the objections, ..
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OPINION AND ORDER
JAMES L. GRAHAM, District Judge.
On July 18, 2016, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings recommending that this action be dismissed. Although the parties were advised of the right to object to the Magistrate Judge's Report and Recommendation, and of the consequences of failing to do so, and although the Court granted Petitioner an extension of time within to file the objections, no objections have been filed.
Instead, on September 12, 2016, Petitioner filed a Motion to Withdraw his Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 77), and a motion to amend the § 2255 petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure1 with additional claims that his sentence violates Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), and Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), and that he was denied the effective assistance of counsel because his attorney failed to raise an issue regarding his competency.
However, Petitioner waited until after the issuance of the Magistrate Judge's Report and Recommendation and after being granted an extension of time to file his objections to request to withdraw his prior claims for relief and to amend his § 2255 motion with new claims. The Court has already invested considerable time in treating the original petition. See Hurd v. Mondragon, 851 F.2d 324, 329 (10th Cir. 1988)(declining to permit the petitioner's request to withdraw his petition prior to final disposition of the case, but after the Magistrate Judge had filed his report)(citing Powell v. Spalding, 679 F.2d 163 (9th Cir. 1982.) Petitioner advances no reason that he could not earlier have presented such claims for relief. Moreover, "a petitioner for habeas corpus cannot be permitted to thwart the limitations on the filing of second or successive motions by withdrawing his first petition as soon as it becomes evident that the district court is going to dismiss it on the merits." Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997). Therefore, the Court declines to grant Petitioner's requests.
The court also notes that granting Petitioner's motion to amend his petition would be futile. Petitioner's claim regarding the denial of the effective assistance of counsel is timebarred. See 28 U.S.C. § 2255(f).2 Petitioner's judgment of conviction became final on June 21, 2015, or ten days after his June 11, 2015, judgment of conviction, when the time period expired to file a timely appeal. See Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). The statute of limitations began to run on the following day, and expired one year later, or on June 12, 2016. Petitioner waited until September 12, 2016, to file his motion to amend the petition to include a new claim regarding the denial of the effective assistance of trial counsel. Therefore, his motion to amend the petition with a new claim of the denial of the effective assistance of counsel is time barred unless such claim "relates back" to the date the initial petition was filed under Federal Rule of Civil Procedure 15. See Mayle v. Felix, 545 U.S. 644 (2005). "An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one -year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth. Id. at 545.
Such are the circumstances here. Petitioner asserted in his initial timely filed habeas corpus petition that he was denied the effective assistance of counsel because his attorney failed to object to a three-level increase in his recommended sentence under the advisory United States Sentencing Guidelines ("the Guidelines"), and claimed that the Court incorrectly enhanced his sentence under the Guidelines. These claims differ in both time and type from Petitioner's claim that his attorney improperly failed to raise an issue regarding his competency. See Johnson v. Sheets, No. 2:07-CV-490, 2008 WL 926582, at *7-8 (S.D. Ohio April 3, 2008)(noting that new claims of ineffective assistance of counsel do not relate back to timely-filed claims of ineffective assistance of counsel based on different sets of facts)(citing Schurz v. Schriro, No. CV-97-580-PHX-EHC, 2006 WL 89933 (D.Arizona Jan. 11, 2006)(internal citations omitted).
Granting Petitioner's motion for leave to amend his motion to vacate to assert a claim under Mathis and Johnson would also be futile, because Petitioner's guideline range and sentence were not enhanced under the Armed Career Criminal Act at issue in those cases, or, for that matter, under any career offender provision.
Petitioner's Motion to Withdraw his Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 77), and his Motion to Amend/Correct Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 78) are DENIED.
The Report and Recommendation (ECF No. 74) is ADOPTED and AFFIRMED and the Motion to Vacate (ECF No. 70) is DENIED. This action is hereby DISMISSED.
IT IS SO ORDERED.
