Ivory v. United States
| Decision Date | 10 February 2023 |
| Docket Number | 3:18-cv-00537 |
| Parties | GEORGE IVORY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Tennessee |
In this proceeding brought under 28 U.S.C. § 2255, George Ivory moves to add a claim asserting that his guilty plea was involuntary under Brady v. United States. (Defendant's Motion to Amend Petition (“Mot. to Amend”) (Civ. Dkt. No. 101).)[1]He also purports to renew his motion for discovery to support theories of relief under Brady v. Maryland and Brady v. United States. (Defendant's Renewed Motion for Discovery and Defendant's Reply to the Government's Response to His Motion to Amend His Petition (“Reply to Mot. to Amend”) (Civ. Dkt. No. 106).) For the following reasons, we deny both motions.
Our opinion denying Ivory's motion for leave to conduct discovery (see January 6, 2023 Memorandum Opinion and Order (“Jan. 6, 2023 Op.”) (Civ. Dkt. No. 103)) recites much of the relevant background. We repeat, elaborate on, and add background only as necessary.
In July 2015, the Government charged Ivory with six criminal counts relating to incidents that took place in March 2015 (Counts 5 and 7) and May 2015 (Counts 1, 2, 3, and 4). (Jan. 6, 2023 Op. at 1-2.) On November 10, 2016, and on the advice of his counsel, Kathleen Morris, Ivory pled guilty to Counts 1-4 pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), whereby he agreed to a sentence of 25 years in custody and 5 years of supervised release. (Id. at 4-5.) In February 2017, Morris withdrew as Ivory's counsel due to a non-waivable conflict of interest. (Id. at 5.) Cynthia Sherwood was appointed as Ivory's new counsel. (Id.)
On September 7, 2017, we sentenced Ivory to 25 years of imprisonment and 5 years of supervised release. (Crim. Dkt No. 223.) We entered judgment on the sentence on September 19, 2017. (Crim. Dkt. No. 224.) On January 16, 2018, Ivory filed a notice of appeal, which the Sixth Circuit dismissed as untimely. (Crim. Dkt. Nos. 229, 231.)
In June 2018, Ivory moved pro se to vacate his sentence under 28 U.S.C. § 2255. In his motion, Ivory alleged that Sherwood, his counsel at sentencing and for any appeal, rendered ineffective assistance by failing to file a timely notice of appeal. (Id. at 4, 9-10, 13.) We ordered an evidentiary hearing and directed the federal defender's office to appoint counsel for Ivory. (Jan. 6, 2023 Op. at 5.) In May 2019, Ivory, represented by his current counsel, moved to amend his § 2255 motion to add a claim that Morris provided ineffective assistance in advising him to plead guilty. (Id.) We granted the motion. (Id.) Ivory then moved to expand the evidentiary hearing to include his claim against Morris. (Id.) We granted this motion as well. (Id.)
In April 2021, we granted Ivory's motion to withdraw his claim against Sherwood, which left his claim against Morris as the only claim at issue in this § 2255 proceeding. (Id. at 5-6.) Ivory contends that there was no physical proof against him, and that Morris had developed useful impeachment evidence against the putative witnesses as well as useful mitigation evidence from a doctor's evaluation of Ivory. (Id. at 6.) Accordingly, Ivory claims, Morris should have sought to dismiss the charges or advised Ivory to go to trial based on the lack of evidence. (Id.) Instead, Morris failed to adequately investigate the evidence against him and unreasonably advised him to accept a 25-year sentence. (Id.) This deficient performance prejudiced him, Ivory continues because absent Morris's advice, he would have proceeded to trial. (Id.)
After continuing the evidentiary hearing multiple times, we set the date of the hearing for October 13, 2022. (Id.) The night before the hearing, at 10:18 p.m., Ivory filed a motion for leave to conduct discovery based on recently discovered evidence.
The impetus for Ivory's motion was two declarations dated October 12, 2022. The first declaration was from Morris, who states that Sunny Koshy, the former Assistant U.S. Attorney who prosecuted Ivory's criminal case, told her on November 7, 2016, that “he ‘had Waggoner in Kentucky.'” (Oct. 12 Morris Decl. ¶ 8.) Morris understood this statement to mean that Donta Waggoner, Ivory's cousin, “was in one of the Kentucky jails, being held as a material witness for the trial, or perhaps was being held on undisclosed federal charges.” (Id. ¶¶ 8, 9.) According to Morris, Koshy also showed her “a page or two” of Waggoner's grand-jury testimony that day, which “showed that Waggoner essentially told the same story as” another witness, making Waggoner “a very important witness.” (Id. ¶ 8.) Morris further states that Koshy told her a few days before that the testimony of White Boy (whose name was not disclosed to her) “had ‘made quite an impression' on the grand jury.” (Id. ¶ 7.) The second declaration was from Michelle Hendrix, the Federal Public Defender's Chief Investigator. (Oct. 12 Hendrix Decl. ¶ 1.) Hendrix states that she was asked to determine whether, in October or November 2016, Waggoner was in custody in any of the detention centers in Kentucky that hold detainees for this District. (Id. ¶ 2.) From October 7 through October 11, 2022, she communicated with employees at four detention centers in Kentucky, whose responses showed that Waggoner had never been in custody at any of the centers. (Id. ¶¶ 3-4; id. at Attachment 1.) Hendrix also reviewed Waggoner's CLEAR report and determined that he had never been prosecuted in Kentucky state court. (Id. ¶ 5.)
Ivory asserted that these declarations provided a basis to obtain discovery related to whether Koshy affirmatively misrepresented that Waggoner was in custody, which, if proven, would support his ineffective-assistance-of-counsel claim against Morris. (Mot. for Discovery at 6-7.) Ivory also asserted that this alleged misrepresentation could support a claim under Brady v. Maryland, 373 U.S. 83 (1963) if it was “part of a larger effort [by Koshy] to withhold facts he knew about Waggoner that would be useful impeachment.” (Id. at 7.) Good cause also existed to allow discovery into a Brady v. Maryland claim, Ivory continued, because the transcript of Waggoner's grand-jury testimony showed that Koshy-by showing Morris only a page or two of favorable testimony-withheld other testimony that was unfavorable. (Id.)
In view of Ivory's motion for discovery, we continued the evidentiary hearing and ordered briefing on the motion. (Jan. 6, 2023 Op. at 6.) The Government filed a response to Ivory's motion that was accompanied by another declaration from Morris. In this later declaration, Morris stated that she would have advised Ivory to plead guilty even if Koshy had not told her that he had Waggoner in Kentucky. (Nov. 16 Morris Decl. ¶ 6.) Ivory's reply to the Government's response did not explain how the discovery he sought could establish his claim against Morris in light of her November 16 declaration. (Jan. 6, 2023 Op. at 8.) Nor did the reply strongly press Ivory's prior assertion that a Brady v. Maryland claim based on Koshy's alleged failure to disclose impeachment material could be viable. Instead, Ivory switched gears, arguing primarily that Koshy's alleged misconduct and the requested discovery supported an involuntary plea claim under Brady v. United States, 397 U.S. 742 (1970)-a claim distinct from Ivory's claim against Morris and any claim based on an alleged violation of Brady v. Maryland. (See generally Defendant's Reply to Response to His Motion for Leave to Conduct Discovery (“Reply to Mot. for Discovery”) (Civ. Dkt. No. 100).) As already noted, we denied Ivory's motion for discovery.
On December 1, 2022, the same day he filed his reply to his motion for discovery, Ivory filed the present motion to amend.
Ivory's motion to amend his § 2255 motion is governed by Federal Rule of Civil Procedure 15, which instructs courts to “freely give leave” to amend “when justice so requires.”
Fed. R. Civ. P. 15(a)(2); United States v. Clark, 637 Fed.Appx. 206, 208 (6th Cir. 2016). When “determining whether to grant a motion to amend” under this rule, a court generally should consider several factors, including whether the amendment would unduly prejudice the opposing party and whether the amendment would be futile. Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458 (6th Cir. 2001). Even so, Rule 15 cannot be used to circumvent the statute of limitations that applies to claims brought under § 2255. See Hill v. Mitchell, 842 F.3d 910, 926 (6th Cir. 2016).
At the outset, we address Ivory's renewed request for discovery. In his reply brief, Ivory renews his request for discovery to support theories of relief under Brady v. Maryland and Brady v. United States,...
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