Braden v. United States

• Decision Date: 10 March 2016
• Docket Number: No. 14–6395.,14–6395.
• Parties: Steve Allen BRADEN, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

817 F.3d 926

Steve Allen BRADEN, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 14–6395.

United States Court of Appeals, Sixth Circuit.

March 10, 2016.^*

ON BRIEF: Kevin M. Schad, Federal Public Defender, Cincinnati, Ohio, for Appellant. Clay T. Lee, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

DAMON J. KEITH

, Circuit Judge.

Following a jury trial in 2009, Petitioner–Appellant Steve Allen Braden ("Mr. Braden") was convicted of and sentenced for three drug- and firearms-related offenses. At sentencing, Mr. Braden was determined to be an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"). In 2011, Mr. Braden filed a pro se petition to vacate his convictions pursuant to 28 U.S.C. § 2255

. The district court appointed counsel to represent Mr. Braden as to his petition. The counsel thereafter filed another petition seeking to raise more claims than those identified in Mr. Braden's pro se petition. The district court denied relief. Mr. Braden timely appealed. On appeal, Mr. Braden argues that the district court erred in dismissing his pro se petition, and he argues, for the first time on appeal, that he is not an Armed Career Criminal. For the following reasons, we REMAND with instructions for the district court to consider Mr. Braden's pro se petition, but we AFFIRM Mr. Braden's classification as an Armed Career Criminal under the ACCA.

I. BACKGROUND

In 2009, Mr. Braden was convicted of one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841

; one count of possession of a firearm in furtherance of drug trafficking activity in violation of 18 U.S.C. § 924(c) ; and one count of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g). Based on his prior convictions, he was classified as an Armed Career Criminal pursuant to the ACCA and as a Career Offender under the United States Sentencing Guidelines (the "Guidelines"). He was sentenced to concurrent terms of forty years of imprisonment on counts one and two, and a consecutive term of five years of imprisonment on count three. He appealed his convictions and sentence to this court, and we affirmed. United States v. Braden, No. 09–5854 (6th Cir. Oct. 28, 2010).

In 2011, Mr. Braden, acting pro se, filed a petition to vacate his convictions pursuant to 28 U.S.C. § 2255

(" § 2255"). In his petition, he asserted multiple claims: ineffective assistance of trial counsel; flawed jury instructions that resulted in a constructive amendment; illegal search and seizure; insufficient arrest warrant; racial discrimination in the selection of the jury; and ineffective assistance of appellate counsel. See Braden v. United States, No. 14–6395 (6th Cir. April 16, 2015). The Government opposed the petition, and then the district court appointed counsel to represent Mr. Braden and instructed newly appointed counsel to "file an amended motion to vacate if necessary."

Newly appointed counsel filed an amended motion raising additional claims regarding the § 922(g)

gun charge. In that motion, defense counsel purported to supplement the prior pro se filing, rather than supersede it, stating: "This amended motion does not abrogate any of the claims Mr. Braden raises in his pro se filings. Rather, it supplements claims A through J of Mr. Braden's pro se motion by adding the claims set forth below."

In denying relief as to the § 2255

petition, the district court stated that it "deem[ed] the amended petition to supersede the pro se petition and the claims therein." The district court further stated that "[u]nless adopted and supported by legal memorandum, the [c]ourt deems the claims in the pro se and first amended petition to be waived." The court then denied the claims raised by appointed counsel in the amended motion as meritless. Mr. Braden appealed.

While his appeal of the denial of the § 2255

motion was pending, Mr. Braden filed a pro se motion pursuant to Federal Rule of Criminal Procedure 59(e) alleging more ineffective assistance of counsel claims. The district court denied this motion as well. In denying the motion, the district court referred to its prior ruling on the § 2255 petition, noting that it had "considered the record as a whole and all of the claims raised in both the original and amended motion, but addressed only those which had some substance. The [c]ourt concluded that [Mr. Braden] was not entitled to relief."

Because a certificate of appealability had not been issued by the district court, we construed Mr. Braden's notice of appeal as an application for a certificate of appealability. Initially, this court granted a limited certificate of appealability solely to address the question of whether the district court erred in failing to consider Mr. Braden's pro se petition. However, this court later expanded the certificate of appealability to encompass the issue of whether Mr. Braden remains an Armed Career Offender under the ACCA in light of the United States Supreme Court's holding in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

. Johnson was decided after the district court had already ruled on Mr. Braden's petition, and after Mr. Braden had initiated the instant appeal. See 135 S.Ct. 2551.

II. DISCUSSION

A. Standard of Review

"In reviewing a district court's denial of a motion under Section 2255

, we apply a clearly erroneous standard to its factual findings and review its conclusions of law de novo. " Hyatt v. United States, 207 F.3d 831, 832 (6th Cir.2000). "Section 2255 provides federal prisoners with a means to secure a second look at the legality of their conviction or sentence, beyond the direct appeal of right." Ajan v. United States, 731 F.3d 629, 631 (6th Cir.2013). "A federal prisoner may move the court which imposed the sentence to vacate, set aside, or correct the sentence." Id. (citation omitted). The district court "initially considers whether or not the petitioner is entitled to any § 2255 relief." Id.

"This court reviews de novo a district court's determination regarding whether a prior conviction constitutes a ‘violent felony’ under the ACCA." United States v. Kemmerling, 612 Fed.Appx. 373, 375 (6th Cir.2015)

(citing United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir.2013) ).

B. Analysis

1. Original Petition & Amended Petition

"Generally, amended pleadings supersede original pleadings." Hayward v. Cleveland Clinic Found., 759 F.3d 601, 617 (6th Cir.2014)

. This rule applies to habeas petitions. See Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir.2014)cert. denied sub nom. Calhoun v. Booker, ––– U.S. ––––, 135 S.Ct. 1403, 191 L.Ed.2d 374 (2015). However, we have recognized exceptions to this rule where a party evinces an intent for the amended pleading to supplement rather than supersede the original pleading, see Clark v. Johnston, 413 Fed.Appx. 804, 811–12 (6th Cir.2011), and where a party is forced to amend a pleading by court order. See Hayward, 759 F.3d at 617–18 ; but cf. Grubbs v. Smith, 86 F.2d 275, 275 (6th Cir.1936) (concluding that regardless of the party's intentions, an "amended and substituted petition" superseded, as a matter of law, the first petition and the first amended petition where the district court had directed the party to combine its first petition and first amended petition into one document). An amended pleading supersedes a former pleading if the amended pleading "is complete in itself and does not refer to or adopt a former pleading [.]" Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 131 (6th Cir.2014) (quoting 61B Am. Jur. 2d Pleading § 789 ).¹

Additionally, while "[a] habeas petitioner has neither a constitutional right nor a statutory right" to represent himself and also be represented by counsel at the same time, "a court may consider a pro se petition even when a habeas petitioner is represented by counsel." Miller v. United States, 561 Fed.Appx. 485, 489 (6th Cir.2014)

. It is not uncommon for newly appointed counsel in habeas cases to supplement the original pro se pleading by adding claims. See Peguero v. United States, 526 U.S. 23, 25, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) (analyzing a case where the district court had "appointed new counsel, who filed an amended motion adding a claim" to a prisoner's pro se 2255 motion).

Here, Mr. Braden initially filed his habeas petition pro se. The district court then appointed counsel to represent him, noting that the newly appointed counsel could file an "amended" petition if necessary. The newly appointed counsel then filed an amended petition asserting additional claims, and noting that the amended petition "does not abrogate any of the claims Mr. Braden raises in his pro se filings. Rather, it supplements claims A through J of Mr. Braden's pro se motion by adding the claims set forth below." The district court nevertheless ruled that the amended petition superseded the original petition, citing a decision of the United States Court of Appeals for the Fifth Circuit, Clark v. Tarrant County, 798 F.2d 736, 740–41 (5th Cir.1986)

.

Because the amended petition was not "complete in itself" and because it referred to and adopted the prior petition, the amended petition did not supersede the original petition. See Shreve, 743 F.3d at 131

. Mr. Braden unequivocally evinced an intent to supplement his original petition. See Clark, 413 Fed.Appx. at 812. Therefore, the district court erred in treating the original petition as superseded. See id.; see also Shreve, 743 F.3d at 131.

The government's sole argument on appeal is that the district court in fact considered the merits of the claims raised in the original pro se petition. In support, the Government points to the district court's order denying Mr. Braden's subsequent Rule 59(e)

motion; the district court stated that it had "considered the record as a whole and all of the claims raised in both the original and amended motion, but addressed only...