MARGARET B. SEYMOUR, Senior District Judge.
This matter is before the court pursuant to a pro se motion by Kenyatte Brown ("Movant"), seeking leave to amend ("motion to amend") a previously filed motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("motion to vacate"). (ECF No. 149.) The United States of America ("Respondent") opposes Movant's motion to amend and seeks dismissal of the matter. (ECF No. 151.) For the reasons set forth below, the court denies Movant's motion to amend and grants Respondent's motion to dismiss.
Movant is currently incarcerated at the Petersburg Federal Correctional Complex in Petersburg, Virginia. On December 4, 2001, Movant was named in a one-count indictment, charging him with possession with intent to distribute less than 5 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) On July 24, 2002, Movant entered a plea of not guilty to the charge in the indictment. (ECF No. 7.) On August 26, 2002, Respondent filed an information pursuant to 21 U.S.C. § 851 to inform Movant that he was subject to the increased penalties of 21 U.S.C. § 841(a)(1) based on 5 previous felony drug convictions. (ECF No. 12.) Thereafter, a jury trial was held on May 20 through May 21, 2003. (ECF No. 61.) On May 21, 2003, the court declared a mistrial after the jury was unable to reach a verdict. (ECF No. 61, p. 5.)
A second trial before a jury was held on September 11 through September 12, 2003. (ECF No. 91.) On September 12, 2003, a jury found Defendant guilty as to the one count of the indictment. (ECF No. 93.) On April 12, 2004, the court sentenced Movant to a term of imprisonment of 262 months. (ECF Nos. 97, 98.) Thereafter, Movant filed a notice of appeal with the Court of Appeals for the Fourth Circuit (the "Fourth Circuit") on April 15, 2004. (ECF No. 99.) On October 31, 2005, the Fourth Circuit affirmed Movant's conviction and sentence. (ECF No. 108.)
On January 23, 2007, Movant filed a pro se motion to vacate his sentence, asserting several grounds for relief. (ECF No. 109.) Specifically, Movant asserted that his attorney provided ineffective assistance of counsel by: (1) failing to object to the use of the Bible as a means to put witnesses under oath; (2) failing to voir dire potential jurors about their use of the Bible in their religious practices; (3) failing to move to dismiss the indictment because Congress had failed to define "crack cocaine" under 21 U.S.C. § 841(a); (4) forcing Movant to stipulate at trial that the substance he sold was crack cocaine; (5) failing to argue at sentencing that
On May 10, 2012, Movant filed the instant motion to amend his original motion to vacate, seeking to assert that he was also denied effective assistance of counsel during the plea process. (ECF No. 149.) Respondent filed opposition to Movant's motion to amend and a motion to dismiss on June 13, 2012. (ECF No. 151.) Movant responded to Respondent's motion to dismiss on June 28, 2012. (ECF No. 152.)
The court has reviewed the record and finds that the motions of Movant and Respondent are suitable for disposition without evidentiary hearing or oral argument.
A federal prisoner in custody may challenge the fact or length of his detention by filing a motion to vacate pursuant to 28 U.S.C. § 2255. To receive relief under § 2255, a movant is required to prove by a preponderance of the evidence that his sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court may summarily deny the petition without holding a hearing. Rule 4(b), Rules Governing Section 2255 Proceedings;
A motion to vacate may be amended "as provided in the rules of procedure applicable to civil actions." 28 U.S.C. § 2242;
"Where the statute of limitations bars a cause of action, amendment may be futile and therefore can be denied."
The enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), placed specific restrictions on second or successive motions to vacate. A defendant must be careful to include all grounds for relief in an initial motion to vacate because the ability to raise other grounds later have been limited. Specifically, "[n]o circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255." 28 U.S.C. § 2244(a). "A second or successive motion [to vacate] must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h). In this regard, § 2244 requires that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A);
The court is required to construe pro se pleadings liberally.
Movant seeks to amend his motion to vacate and assert a new claim that he was denied effective assistance of counsel during the plea process because the erroneous advice of his attorney "deprived him of the right to make a knowing and informed choice on whether to accept the Government's plea offer." (ECF No. 149 at 3.) In support of his motion to amend, Movant argues that his new claim relates back under Fed. R. Civ. P. 15 to his prior timely filed motion to vacate because the applicable statute of limitations allows the relation back. (ECF No. 152 at 3.) Movant further argues that § 2255(f)(3)
In opposition to the motion to amend and in support of its motion to dismiss, Respondent argues that the court is without jurisdiction to entertain Movant's motion because he did not seek permission from the Fourth Circuit to file a successive motion to vacate. (ECF No. 151 at 2 (citing 28 U.S.C. § 2244(b)(3)(A)).) In support of its argument, Respondent asserts that Movant's motion to amend is successive because his motion seeks to raise new allegations not previously raised. (
Respondent also argues that the motion to amend is not properly before the court because Movant failed to submit a motion for certification "that the successive motion contains either newly discovered evidence or a new rule of constitutional law." (
Movant asks the court to deny Respondent's motion to dismiss, asserting that he is not required to show that the Supreme Court made
Movant asserts that the claim in his motion to amend arises out of the same conduct, transaction, or occurrence set forth in his motion to vacate and, therefore, relates back under Fed. R. Civ. P. 15 to the original motion to vacate. Upon the court's review, Movant's assertion fails because the claim in the motion to amend and the claims made in the original motion to vacate are not tied to a common core of operative facts. Here, the claim in the motion to amend is that Movant received ineffective assistance of counsel in connection with the plea process. (ECF No. 149 at 3.) In his original motion to vacate, Movant asserted ineffective assistance of counsel claims for conduct that occurred during jury selection, the trial proceedings, and during sentencing. (
Before this court can consider a second or successive motion to vacate, Movant must receive certification from the Fourth Circuit.
Upon careful consideration of the entire record and the arguments of the parties, the court is of the opinion that Kenyatte Brown's motion to amend his motion to vacate should be and is hereby