McLellan v. United States, Civil Action 1:20-00469-KD

• Court: United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
• Parties: Dustin Lee McLellan, BOP Reg. # 16854-003, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Docket Number: Civil Action 1:20-00469-KD,Criminal Action 1:17-0093-KD-N
• Decision Date: 04 August 2022

Dustin Lee McLellan, BOP Reg. # 16854-003, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civil Action No. 1:20-00469-KD

Criminal Action No. 1:17-0093-KD-N

United States District Court, S.D. Alabama, Southern Division

August 4, 2022

ORDER

KRISTI K. DUBOSE UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Dustin Lee McLellan's pro se^[1] Motion to Vacate pursuant to 28 U.S.C. § 2255 and Addendums (Docs. 136, 143), the Government's Response (Doc. 148), the Defendant's Reply (Doc. 154); the Defendant's Motions for Addendum to Amend, and to Add Grounds (Docs. 165, 166, 168); and the Defendant's Motion to Appoint Counsel (Doc. 167).

I. Background

On May 24, 2017, the federal grand jury for this district issued an indictment against Defendant Dustin Lee McLellan charging him with one count (Count 1) of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1). On July 27, 2017, the federal grand jury for this district issued a superseding indictment against Defendant Dustin Lee McLellan charging him with three counts (Counts 1-3) of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). (Doc. 29). Count 1 was severed from Counts 2 and 3. On August 7, 2017, McLellan was found guilty of Count 1 after a jury trial. (Doc. 54). Later, pursuant to a plea agreement, McLellan pled guilty to Count Two of the superseding indictment in exchange for the government's agreement to dismiss the third count. (Doc. 83). On July 18, 2018, McLellan was sentenced to 180 months imprisonment, a subsequent 5-year term of supervised release, and a special assessment of $200. (Doc. 109). McLellan appealed that judgment. (Docs. 111, 116). McLellan's conviction was affirmed on May 6, 2020, but the 11^th Circuit requested this Court to clarify its sentence. (Doc. 36). Because McLellan did not seek Supreme Court review of the Eleventh Circuit's decision, his judgment of conviction became final 90 days later, on August 4, 2020. See Clay v. United States, 537 U.S. 522, 532 (2003) (“We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires.”).

McLellan, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 136), challenging the judgment entered against him in the above-referenced criminal action on 16 different grounds. McLellan is deemed to have filed the present § 2255 motion, his first, on September 8, 2020 - the date he certifies it was delivered to prison officials for mailing (Doc. 136).^[2] McLellan asserts his conviction and sentence must be vacated in light of alleged trial errors, ineffective assistance of counsel, and sentencing issues. See generally (Docs. 136, 143). The Government responds that the Court should deny McLellans's motion contending McLellan has not satisfied his burden for showing ineffective assistance of counsel and the rest of his claims are procedurally defaulted. (Doc. 148). McLellan filed a Motion for Addendum (Doc. 165) on March 21, 2022, Motion to Amend (Doc. 166) on April 18, 2022, and a Motion to Add Grounds (Doc. 168) on May 16, 2022.

II. Legal Standard

Pursuant to Title 28 United States Code Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges in four circumstances: (1) the imposed sentence violated the constitution or the laws of the United States; (2) the court exceeded its jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255; see also McKay v. United States, 657 F.3d 1190, 1194, n.8 (11^th Cir. 2021). “Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack.” Eddie Lee Battles v. United States, 2020 WL 5407682 *3 (M.D. Fla. Sept. 9, 2020) (citing United States v. Addonizio, 442 U.S. 178, 184-86, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)). If a court determines it imposed a sentence in violation of Section 2255, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). The movant, not the Government, bears the burden to establish that vacatur of the conviction or sentence is required. Beeman v. United States, 871 F.3d 1215, 1221-22 (11^th Cir. 2017).

A motion under § 2255 is not a substitute for direct appeal, and issues which could have been raised on direct appeal are generally not actionable in a § 2255 motion and will be considered procedurally barred. Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); see also Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004) (“Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.”) (collecting cases). When a defendant has procedurally defaulted on his claim, he is barred from collaterally attacking his conviction in federal court unless he can demonstrate either “cause” and actual “prejudice,” or that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604 (1998).

Cause sufficient to excuse a procedural default “ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Mere inadvertence or neglect does not constitute good cause. Cf. Prisco v. Frank, 929 F.2d 603, 604 (11th Cir. 1991). To show actual prejudice, the movant must demonstrate not “merely that the errors [before the trial court] created a possibility of prejudice, but that they worked to her actual and substantial disadvantage, infecting [the entire trial court proceeding] with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584 (1982).

In the context of overcoming a procedural default, “actual innocence” means factual innocence, and “[t]o establish actual innocence, the petitioner must demonstrate that, ‘in light of all the evidence,' ‘it is more likely than not that no reasonable juror [would have] convicted him.'” Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

And, a petitioner is procedurally barred from raising arguments in a motion to vacate which he has already raised and that have been rejected on direct appeal. See Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014); see also Felix v. United States, 2020 WL 773476, at *1 (11th Cir. 2020) (citing same). “[A] claim that was rejected on appeal does not merit rehearing on a § 2255 motion when based on a different, but previously available, legal theory.” Posa v. United States, 2017 WL 8800980, at *2 (11th Cir. 2017) (citing United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)). But, a defendant can overcome this procedural bar to relitigation if his new claim is based on an intervening change in substantive law. Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (“[E]ven though the legal issue raised in a § 2255 motion was determined against the applicant on the merits on [direct appeal], the applicant may nevertheless be entitled to [collateral review on the legal issue] upon showing an intervening change in the law.” (emphasis added) (alteration and quotation marks omitted)).

III. Discussion

A. Motions for Addendum, to Amend, and to Add Grounds

As mentioned supra, a criminal defendant has one year to file a § 2255 habeas petition after their conviction becomes final. Federal Rule of Civil Procedure 15(c), which has been made applicable to habeas proceedings, provides that pleading “[a]mendments made after the statute of limitations has run relate back to the date of the original pleading if the original and amended pleadings ‘ar[i]se out of the conduct, transaction, or occurrence.” Mayle v. Felix, 545 U.S. 644, 655 (2005) (quoting Fed. R. Civ. P 15(c)(2)). However, “[a] new claim only relates back to prior claims if they are ‘tied to a common core of operative facts.' ” Oliveiri v. United States, 717 Fed.Appx. 966, 968 (11th Cir. 2018) (per curiam) (unpublished) (quoting Mayle, 545 U.S. at 664). “The untimely claim, that is, ‘must have more in common with the timely filed claim than the mere fact that they arose out of the same trial and sentencing proceedings.' ” Id. (quoting Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000)).

Equitable exceptions may excuse an untimely habeas claim. First,

the district court may still review an untimely petition filed by a petitioner entitled to equitable tolling. As the Supreme Court has explained, the time period specified in 28 U.S.C. § 2244 is a statute of limitations, not a jurisdictional bar, and Section 2244 does not bar the application of equitable tolling in an appropriate case. Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010).

The Supreme Court []affirmed, however, that “a petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2562 (internal quotation marks omitted);

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