Clark v. United States

Decision Date04 September 2014
Docket NumberNo. 11–6380.,11–6380.
PartiesDeidre Lynn CLARK, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ARGUED:Joshua I. Hammack, Jones Day, Washington, D.C., for Appellant. Brandon L. Fyffe, United States Attorney's Office, Lexington, Kentucky, for Appellee. ON BRIEF:Jennifer L. Swize, Jennifer Bradley Lichter, Jones Day, Washington, D.C., for Appellant. Charles P. Wisdom, Jr., Elisabeth A. Sigler, United States Attorney's Office, Lexington, Kentucky, for Appellee.

Before: SILER, GILMAN, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Deidre Clark, a pro se federal prisoner, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, claiming that the assistance of her trial and appellate counsel was ineffective and that her plea was not knowing or voluntary. The district court denied both her original § 2255 motion and her first motion to amend and dismissed with prejudice Clark's application for relief under § 2255. Clark did not timely appeal that judgment. Rather, on October 3, 2011, Clark filed a second motion to amend, which was identical to her first motion to amend. The district court denied her second motion to amend for the same reasons underlying its denial of her first motion to amend—namely, that Clark filed the motion after the magistrate judge recommended a disposition of her § 2255 motion and, moreover, the claims Clark sought to add were futile. This court issued a certificate of appealability (COA) as to the denial of Clark's second motion to amend. We now affirm.

I.

On March 29, 2007, a federal grand jury returned a second superseding indictment charging Clark with making a false statement to a federally licensed firearm dealer, in violation of 18 U.S.C. § 924(a)(1)(A), and with possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). On September 6, 2007, Clark entered a nolo contendere plea to the false-statement charge and a guilty plea to the possession charge. On June 2, 2008, the district court sentenced Clark to a term of 108 months' imprisonment, consisting of 60 months as to the false-statement charge and 108 months as to the possession charge, to be served concurrently. On direct appeal, this court affirmed Clark's convictions and sentences and granted counsel's motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

On July 20, 2010, Clark filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, claiming that the assistance of trial and appellate counsel was ineffective and that her plea was not knowing or voluntary. On July 19, 2011, the magistrate judge recommended that Clark's § 2255 motion be denied on the merits. Clark did not file objections to the magistrate judge's recommendation. Instead, on August 22, 2011, she filed a motion to amend her § 2255 motion. In her motion, Clark claimed that “due to her severe depression” she was unable to file pro se a comprehensive § 2255 motion in the first instance in July 2011. She asked the court for leave to amend her § 2255 motion to add four new claims. Two of those claims alleged that the sentence imposed by the district court violated the Fifth Amendment because the four-level enhancement for transferring a firearm to be used in a felony offense and the two-level enhancement for obstruction of justice were incorrectly applied. Clark also sought to add claims alleging selective prosecution and judicial misconduct.

On August 23, 2011, the district court denied Clark's motion to amend her § 2255 motion. First, the district court noted that requests to amend § 2255 motions are governed by Federal Rule of Civil Procedure 15. It then denied Clark leave to amend because she filed her motion to amend after the magistrate recommended a disposition of her § 2255 motion. The district court reasoned that a litigant may not raise new arguments in objection to a magistrate judge's recommendation and that Clark cannot circumvent that rule by framing her new arguments as amendments. Moreover, the district court denied Clark's motion to amend because her proposed additional claims would have been futile. The district court reasoned that her challenges to the sentencing enhancements were considered and rejected by this court on direct appeal. See Clark, No. 08–5720, slip op. at 3 (6th Cir. July 28, 2009) (order) (holding that “the district court did not err by applying a four-level enhancement pursuant to USSG § 2K2.1 (b)(6) and that the “two-level increase for obstruction of justice under USSG § 3C1.1 was proper). The district court further held that Clark's prosecutorial and judicial-misconduct claims would have been barred by the statute of limitations because neither claim “related back” to the original motion, being based on facts other than those on which her original ineffective-assistance-of-counsel and Fifth–Amendment claims were predicated. See Mayle v. Felix, 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (“An amended habeas petition, we hold, 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.”); see also28 U.S.C. § 2244(d)(1) (one-year limitation period); Fed.R.Civ.P. 15(c)(2) (stating that pleading amendments relate back to the filing date of the original pleading when both the original plea and the amendment arise out of the same “conduct, transaction, or occurrence”).

After denying Clark's motion to amend, the district court construed her motion as containing objections to the magistrate judge's recommended disposition of her § 2255 motion. The district court then denied the objections and adopted the magistrate's recommendation. The district court accordingly denied Clark's § 2255 motion to vacate and dismissed her claims with prejudice. The district court then dismissed the § 2255 proceeding and struck it from the court's docket.

Clark did not file a timely notice of appeal. Rather, in response to the district court's judgment, she filed a second motion to amend her original § 2255 motion that was identical to her first motion to amend. Attached to her second motion to amend, Clark included a letter to the magistrate judge, alleging that because she was “not in [her] right state of mind” when she composed her original § 2255 motion, she did not include the claims that she sought permission to add. Clark's second motion to amend was filed on October 3, 2011. The district court denied her motion the next day.

This court received a letter request for a COA on October 31, 2011, and that document was filed as Clark's notice of appeal. The notice of appeal was late insofar as it was taken from the August 23, 2011 judgment; however, this court construed that notice of appeal as a timely appeal taken from the October 4, 2011 denial of Clark's second motion to amend. United States v. Clark, No. 11–6380 (6th Cir. Mar. 13, 2012) (order). This court remanded to the district court for the purpose of determining whether to grant or to deny a COA on Clark's appeal of the denial of her second motion to amend her original § 2255 motion. United States v. Clark, No. 11–6380 (6th Cir. May 21, 2012) (order). The district court denied a COA for the reasons outlined in its August 23, 2011 opinion and order.

On February 8, 2012, this court granted a COA. United States v. Clark, No. 11–6380, slip op. at 3 (6th Cir. Feb. 8, 2013) (order granting COA). This court found that reasonable jurists would find it debatable whether the district court was correct in its ruling that Clark's second motion to amend was procedurally barred. First, this court noted that although a post-conviction petitioner generally may not raise new claims or arguments in response to a magistrate judge's recommendation, such claims may be raised if there are “compelling reasons.” Clark, No. 11–6380, slip op. at 2–3 (order granting COA) (quoting Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.2000)). This court found that in her second motion to amend her § 2255 motion Clark referred to her “severe depression” as a reason for not including the additional claims in her original § 2255 motion. Id. at 3. Hence, this court granted a COA on the issue of whether depression may amount to a compelling justificationfor amending a § 2255 motion after the magistrate judge has issued a report and recommendation. Id. Second, this court instructed the parties to address the applicability of Federal Rule of Civil Procedure 15(a)(2), which provides that a district court “should freely give leave [to amend] when justice so requires,” to the circumstances of Clark's case. Id. (citing Coe v. Bell, 161 F.3d 320, 341–42 (6th Cir.1998)).

II.

We begin with our jurisdiction, which we have a duty to consider and may raise sua sponte. Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 710–11 (6th Cir.2012); see also Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127, 2 L.Ed. 229 (1804) ([I]t [is] the duty of the Court to see that they had jurisdiction, for the consent of the parties could not give it.”). On January 12, 2014, this court denied the government's motion to dismiss the appeal for lack of jurisdiction or, alternatively, to revoke the COA as improvidently granted. United States v. Clark, No. 11–6380 (6th Cir. Jan. 2, 2014) (order). This court correctly pointed out that the COA, even if improvidently granted, vests jurisdiction in the court of appeals. See Porterfield v. Bell, 258 F.3d 484, 485 (6th Cir.2001). Our jurisdictional inquiry does not end there, however.

The Anti–Terrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104–132, 110 Stat. 1214, §§ 104–06 (codified as amended in 28 U.S.C....

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