Mandacina v. U.S.

• Decision Date: 16 May 2003
• Docket Number: No. 02-1685.,02-1685.
• Citation: 328 F.3d 995
• Parties: John A. MANDACINA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

328 F.3d 995

John A. MANDACINA, Appellant, v. UNITED STATES of America, Appellee.

No. 02-1685.

United States Court of Appeals, Eighth Circuit.

Submitted: December 9, 2002.

Filed: May 16, 2003.

COPYRIGHT MATERIAL OMITTED

Mark W. Hagemeister, argued, St. Louis, MO (David B. Helfrey, on the brief), for appellant.

Paul S. Becker, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before BOWMAN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

A jury convicted John A. Mandacina (Mandacina) of conspiracy, retaliating against an informant, interstate murder-for-hire, and use of a firearm during a crime of violence. The district court sentenced Mandacina to life imprisonment. We affirmed. United States v. McGuire, 45 F.3d 1177 (8th Cir.1995). Mandacina filed a motion and supplemental motion pursuant to 28 U.S.C. § 2255 (2000), raising multiple Brady claims and ineffective assistance of counsel claims. The district court¹ denied the original motion, and dismissed as untimely the claims in the supplemental motion. Mandacina appeals. We affirm the judgment below.

I. BACKGROUND²

Larry Strada (Strada) provided information to the Federal Bureau of Investigation (FBI) implicating Mandacina in illegal gambling operations in the Kansas City area. On May 3, 1990, Mandacina pled guilty to charges of conducting an illegal gambling business and was sentenced to twelve months imprisonment. Thirteen days later, Strada was gunned down outside his home. The gunman did not remove Strada's jewelry, cash or bank bag. The FBI later assumed control of the murder investigation.

In December 1990, Mandacina's co-defendant, Patrick McGuire (McGuire), and his brother-in-law, Terry Dodds (Dodds), were arrested for bank robbery. Dodds later cooperated with the FBI, and implicated Thomas Earlywine (Earlywine) in several unsolved bank robberies. After the arrest, Earlywine also cooperated with the FBI. Both Dodds and Earlywine implicated Mandacina in Strada's murder. Dodds told the FBI he had overheard a conversation in which Mandacina said he wanted somebody killed for implicating him in criminal activity. Earlywine told the FBI that, in May 1990, Mandacina said he wanted Strada killed and offered to pay McGuire $25,000 to kill Strada.

The FBI also interviewed Frank Angotti (Angotti), a long-term acquaintance of McGuire. Angotti told the FBI he met McGuire for a drink in July 1990. During the meeting, Angotti asked McGuire, "Well, I hear that you did Larry. Did you do Larry?" Angotti told the FBI McGuire responded, "Yes." The government charged Mandacina with conspiracy, retaliating against an informant, interstate murder-for-hire, and use of a firearm during a crime of violence.

On August 16, 1993, approximately three weeks before trial, government counsel sent Mandacina's trial counsel a report of a May 19, 1990, interview with Donna Borland (Borland Report). The Borland Report consists of six pages of notes taken during an interview of Borland by two Gladstone, Missouri, police detectives. According to the Borland Report, Borland told the detectives Strada was involved in "fronting money for others to buy drugs." When the detectives asked Borland "why or who might have killed" Strada, Borland told them "[i]t was done because [Strada] had turned some information and names over to the authorities in reference to the buying and selling of drugs." Borland did not provide the detectives with specific names, but said "they were some of the people ... mentioned earlier" by the detectives. The detectives had previously read Borland a list of names collected in the investigation. Near the end of the interview, Borland told the detectives that "6 or 7 people [were] indicted and this was done within the past several months." Borland also told detectives they needed "to identify and talk with these people, as this is probably where the `hit' came from."

The record does not reveal whether Mandacina's trial counsel reviewed or investigated the Borland Report or sought additional discovery during the three weeks before trial, which began on September 7, 1993. A jury convicted Mandacina on all counts, and he was sentenced to life imprisonment. After this court affirmed his conviction and sentence, McGuire, 45 F.3d at 1190, Mandacina filed a habeas motion alleging (1) the government failed to disclose exculpatory evidence, (2) Mandacina received ineffective assistance of counsel, and (3) newly discovered evidence required Mandacina's convictions be vacated. After carefully reviewing these claims, the district court dismissed all claims, except the newly discovered evidence claims relating to footprints discovered at the crime scene. The district court allowed additional discovery on these claims.

On September 27, 2000, twenty days after the district court dismissed all the original claims, except the footprint evidence claims, Mandacina sought leave to file a supplemental section 2255 motion. After allowing discovery, the district court determined the original claims relating to footprint evidence lacked merit, and the newly asserted claims in the supplemental motion were untimely and should be stricken.

On March 4, 2002, the district court granted, in part, Mandacina's extensive application for a certificate of appealability. The court certified two issues for appellate review, one relating to a claim of ineffective assistance of counsel in failing to investigate the Borland Report, and the other relating to the failure to disclose or develop impeachment from Angotti's testimony, whether treated as a Brady violation or an ineffective assistance of counsel claim.

II. DISCUSSION

On appeal, Mandacina raises three issues, which are not necessarily consistent with the certificate of appealability. First, Mandacina contends the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) by failing to provide him with the names of alternate suspects with strong motives to murder Strada, and by failing to disclose evidence proving Angotti, a key prosecution witness, was forced to testify. Second, Mandacina claims his trial attorney failed to investigate alternate suspects and failed to compel the government to release information on other suspects in violation of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Third, Mandacina claims his amended motion was timely filed pursuant to 28 U.S.C. § 2255(2) and (4), because the newly asserted claims related back to the original motion, the government prevented him from bringing timely claims, and certain evidence was only recently discoverable through diligent investigation. Alternatively, Mandacina argues, if subsections 2255(2) and (4) are inapplicable, the statute should be equitably tolled due to circumstances beyond his control and because his newly asserted claims satisfy the "actual innocence" standard.

Initially, we note the Brady and ineffective assistance claims raised here were not previously raised in the original section 2255 motion. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a section 2255 motion must be filed within one year of the date the conviction becomes final, except in circumstances not present here. 28 U.S.C. § 2255. While Mandacina's original motion was timely filed, his supplemental motion, filed three years later, was not. Therefore, the supplemental motion is time-barred, unless Mandacina can satisfy a relation back analysis.

Pursuant to the Federal Rules of Civil Procedure, relation back of amendments filed after the period of limitations is permitted in certain instances.³ The relation back doctrine allows untimely claims to be deemed timely by treating the claims as if they had been filed when the timely claims were filed. Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir.2000). "An amendment to a pleading shall `relate back' to the date of the original pleading only if the claim asserted in the original pleading and the claim asserted in the amended pleading arose out of the same conduct, transaction, or occurrence." United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.1999) (citing Fed. R.Civ.P. 15(c)(2)). "The rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide." Id. (citations omitted). Thus, only if the Brady claims and the ineffective counsel claims alleged in Mandacina's supplemental section 2255 motion can be said to have arisen out of the same set of facts as his original claims will they relate back for purposes of deeming the claims timely filed. We review a district court's application of Rule 15(c) for an abuse of discretion. See Craycraft, 167 F.3d at 457 n. 6; Davenport, 217 F.3d at 1343 n. 4.

A. Borland Report

1. Amended Brady Claim

In analyzing whether the two Borland Report claims-one raised as a Brady violation claim, and another raised as an ineffective assistance claim-relate back to the original section 2255 motion, the district court recognized the determination presented "a reasonably close question." The district court explained Mandacina's original motion alleged the government failed to disclose exculpatory evidence, "including various physical and other evidence obtained by the Gladstone Police Department and detectives involved in the investigation of Mr. Strada's murder." The original motion also alleged:

[T]he Government failed to properly disclose... any and all information related by Mr. Strada prior to his death in which Mr. Strada implicated any other person in any criminal activity, including any organized crime-related activity. Such information constitutes favorable and exculpatory information in that it establishes a motive for others besides Movant Mandacina to have killed or...