Christopher v. U.S.

Citation146 F.Supp.2d 146
Decision Date10 May 2001
Docket NumberNo. CIV. A. 99-602L.,CIV. A. 99-602L.
PartiesCharles CHRISTOPHER, v. UNITED STATES of America.
CourtUnited States State Supreme Court of Rhode Island

Mortimer C. Newton, Providence, RI, Terrence Reed, Alexandria, VA, for plaintiff.

Anthony C. DiGioia, U.S. Attorney's Office, Providence, RI, for defendant.

MEMORANDUM AND ORDER

LAGUEUX, District Judge.

This matter is before the Court on the motion of the petitioner, Charles Christopher, to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied. No evidentiary hearing is necessary.

Facts and Travel

In 1993, petitioner and George W. Reeder were indicted by a federal grand jury on multiple counts of violation of 18 U.S.C. §§ 1343 (wire fraud) and 2314 (interstate transportation of stolen property). Those charges resulted from the involvement of the defendants in the 1988 acquisition of American Universal Insurance Holding Company (American) and Diamond Benefits Life Insurance Company (Diamond) by Resolute Holding Company (Resolute).

Christopher was Resolute's vice-president. Reeder was Resolute's majority stockholder. Since American was a Rhode Island corporation, Resolute needed regulatory approval from the Rhode Island Department of Business Regulation (RIDBR) in order to acquire American. Similarly, because Diamond was an Arizona corporation with its principal offices in California, Resolute needed the approval of both of those states' insurance regulators in order to acquire Diamond.

In seeking the requisite regulatory approvals on Resolute's behalf, Christopher and Reeder made certain assurances to state regulators, including that Resolute would not use the acquired companies' assets to pay for the purchase and that the collateral tendered by Resolute in its acquisition of the companies would be cleared of all pre-existing liens prior to closing. In fact, American and Diamond assets were used, inter alia, to pay part of the purchase price and to clear liens on the real estate owned by Reeder that was used as collateral by Resolute. After the acquisition, both American and Diamond went into receivership. Moreover, contrary to assurances made to the California, Arizona and Rhode Island regulators, encumbrances on the collateral property were not cleared prior to Resolute's acquisition of American and Diamond.

Prior to trial, the cases against Reeder and Christopher were severed. Reeder's trial was continued due to his illness and Christopher proceeded to trial.1 In July 1995, a district court jury adjudged Christopher guilty of 11 counts of wire fraud and 10 counts of interstate transportation of stolen property.

In December 1996, Senior United States District Judge Francis J. Boyle sentenced Christopher to consecutive terms totaling 121 months of imprisonment on three of the counts of conviction. On the remaining counts, the court imposed sentences of 60 to 120 months of imprisonment, to be served concurrently with the 121 month term. On each count the court imposed concurrent terms of three-years of supervised release. In addition, Christopher was ordered to pay restitution totaling $26.7 million and a special assessment of $1050.

Christopher appealed from his conviction and sentence. After modifying the restitution order to exclude losses for which Christopher had not been charged in the indictment, the First Circuit affirmed the conviction and sentence. United States v. Christopher, 142 F.3d 46 (1st Cir.1998). Christopher's subsequent petition for a writ of certiorari was denied by the Supreme Court on December 14, 1998.2

On December 14, 1999, exactly one year following the denial of certiorari, Christopher filed the instant § 2255 motion. Initially petitioner proffered three grounds in support of his motion. Specifically, he alleged that: (1) the sentence imposed was based on inaccurate information; (2) the government suppressed exculpatory evidence relevant to his conviction and sentence; and (3) that his conviction was obtained and sentence determined through the use of false testimony which the government knew or should have known was false, all in deprivation of his Fifth Amendment right to due process of law.

The government filed an objection to the § 2255 motion. Thereafter, on August 8, 2000, petitioner filed a document captioned "Movant's Amended Motion Pursuant to 28 U.S.C. § 2255, and Response to Government Objections." In addition to addressing the arguments proffered by the government in objecting to his prayer for § 2255 relief, Christopher's submission set forth a new, additional claim in support of his motion to vacate sentence. Specifically, he contended that his sentence was violative of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

In Apprendi, the Court held that the United States Constitution requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 488-90, 120 S.Ct. 2348, 2362-63. In substance, Christopher argues that because the consecutive sentences imposed on three of the wire fraud counts totaled 121 months he received a sentence in excess of the greatest statutory maximum applicable to any one of the counts of conviction. The offenses of conviction which carry the highest statutory maximum are violation of 18 U.S.C. § 2314 (transportation of stolen goods) which is 10 years.

On November 22, 2000, Christopher filed a pleading captioned "Second Amended Motion Pursuant to 28 U.S.C. § 2255." In that document, Christopher purported to amend his § 2255 motion to add a claim for relief under Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000).

In Cleveland, the Court held that state and municipal licenses in general, and Louisiana's video poker licenses in particular, did not amount to "property" for purposes of 18 U.S.C. § 1341 (mail fraud), in the hands of the licensor. Id. at 15, 121 S.Ct. 365, 368. Relying on Cleveland, Christopher asserts that his wire fraud convictions should be vacated because the regulatory approvals obtained on Resolute's behalf did not amount to "property" under § 1343.

Neither "amendment" was filed within the one-year time limitation period applicable to the filing of § 2255 motions. See 28 U.S.C. § 2255. Moreover, petitioner neither sought nor obtained leave from this court to amend his initial motion. Accordingly, as set forth in the Court's order dated December 1, 2000, both "amendments" are regarded as motions for leave to amend. Pursuant to the Court's order, the parties have filed supplemental memoranda addressing whether the grant of either proposed amendment is appropriate. Both the motions to amend and petitioner's § 2255 motion are now in order for determination.

Discussion

The Motions to Amend.

Neither § 2255 nor the Rules Governing Section 2255 Proceedings addresses amendment of a § 2555 motion. However, Rule 12 provides that:

[i]f no procedure is specifically prescribed by these rules, the district court * * * may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.

Rules Governing Section 2255 Proceedings for the United States District Courts, R. 12.

Rule 15 of the Federal Rules of Civil Procedure applies to § 2255 proceedings. United States v. Barrett, 178 F.3d 34, 46 (1st Cir.1999), cert. denied, 528 U.S. 1176, 120 S.Ct. 1208, 145 L.Ed.2d 1110 (2000). Accord, United States v. Thomas, 221 F.3d 430 (3d. Cir.2000). The rule provides in pertinent part:

(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served * * *. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

* * * * * *

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when

(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or

(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading * * *.

Fed.R.Civ.P. 15.

Christopher's assertions to the contrary notwithstanding, both of his proposed amendments were filed subsequent to the government's filing of its objection to the initial § 2255 motion. Accordingly, the court's grant of leave to amend is a pre-requisite to Christopher's pursuit of his Apprendi and Cleveland claims in the instant § 2255 proceeding.

Although Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely given," amendment need not be permitted when the proposed amendment would be futile. E.g., Judge v. City of Lowell, 160 F.3d 67, 79 (1st Cir.1998) (citations omitted). In the instant matter, both amendments would be futile because neither was filed within § 2255's one-year limitation period and because neither proposed amendment relates back to the date of Christopher's filing of his initial petition.

28 U.S.C. § 2255 establishes a one-year time period for the filing of § 2255 motions. The statute provides in pertinent part:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

* * * * * *

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

Christopher's conviction became "final" for purposes of § 2255 on December 14, 1998, the date of the...

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4 cases
  • United States v. Santiago
    • United States
    • U.S. District Court — District of Rhode Island
    • June 16, 2021
    ...3. Motions to Supplement/Amend Rule 15 of the Federal Rule of Civil Procedure applies to § 2255 proceedings. Christopher v. United States, 146 F. Supp. 2d 146, 150 (D.R.I. 2001) (citing United States v. Barrett, 178 F.3d 34, 46 (1st Cir. 1999)). Rule 15 provides that:A party may amend its p......
  • Christopher v. Miles
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 6, 2003
    ...that, even assuming Cleveland stated a new rule of constitutional law, the case did not apply retroactively. Christopher v. United States, 146 F.Supp.2d 146, 151 (D.R.I.2001). Christopher did not thereafter continue to pursue relief on these grounds under § In November 2001, Christopher fil......
  • Cohen v. FGX Int'l Inc.
    • United States
    • U.S. District Court — District of Rhode Island
    • June 17, 2019
    ...critical issue is "whether the original complaint gave the defendant fair notice of the newly alleged claims." Christopher v. United States, 146 F.Supp.2d 146, 151 (D.R.I. 2001) (quoting Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2nd Cir. 2000)); see also 6A Charles Alan Wright, Art......
  • Beagan v. U.S., 98-361L.
    • United States
    • U.S. District Court — District of Rhode Island
    • October 18, 2002
    ...For the reasons that follow, this Court concludes that allowance of the proposed amendment would be futile. In Christopher v. United States, 146 F.Supp.2d 146 (D.R.I.2001), this writer thoroughly explained that petitions made pursuant to § 2255 must comply with certain procedural and substa......

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