Noble v. United States
| Decision Date | 17 September 2018 |
| Docket Number | No. 2:10-CR-51-JRG,No. 2:16-CV-38-JRG,2:10-CR-51-JRG,2:16-CV-38-JRG |
| Parties | MICHAEL NOBLE, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
On May 11, 2012, a jury convicted Michael Noble, Jr., ("Petitioner") of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). [Doc. 106].1 Petitioner received a sentence of 120 months' incarceration and twenty years of supervised release. [Doc. 118]. Pending before the Court are Petitioner's motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, [Doc. 147], as well as a motion to amend his pleading. [Doc. 159]. The United States responded in opposition to Petitioner's § 2255 motion, arguing that none of his claims provide a basis upon which to grant relief and that the motion should be denied. [Doc. 154]. Petitioner replied to that response. [Doc. 155]. On November 16, 2017, some seventeen months after the Government filed its response, Petitioner submitted his motion to amend his § 2255 motion, a proposed amended § 2255 motion, a memorandum brief, and his supporting affidavit. [Docs. 159, 159-1, 159-2, 159-3].
Under Rule 8 of the Rules Governing § 2255 Proceedings, the Court must determine, based on a review of the answer and the record, whether an evidentiary hearing is required. Pola v. United States, 778 F.3d 525, 532 (6th Cir. 2015). A petitioner's burden in this regard is relativelylight, but more is required than protestations of innocence. Valentine v. United States, 488 F.3d 325, 334 (6th Cir. 2007). In this case, the Court can resolve this case on the record without an evidentiary hearing. Id. (). Therefore, no evidentiary hearing is necessary.
For the following reasons, Petitioner's motion to amend his § 2255 motion, will be GRANTED in part (as to arguments that elaborate on or restate claims asserted in the § 2255 motion), and DENIED in part (as to new claims that do not relate back to the original claims in the § 2255 motion); his § 2255 motion will be DENIED; and the entire § 2255 case will be DISMISSED WITH PREJUDICE.
In Petitioner's motion to amend, he maintains that he is merely clarifying the claims raised in his motion, is not changing the substance of those earlier claims, and is incorporating those earlier claims into his motion to amend. [Doc. 159 at 1]. Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the only time constraint for a federal prisoner to file a § 2255 motion was the prejudice that would ensue if a respondent were required to respond to the motion to vacate due to a delay in filing. See Advisory Committee Note to 1976 Adoption to Rule 9, Rules Governing Section 2255 Proceedings. Under the AEDPA, however, a federal prisoner now has one year in which to file a § 2255 motion. See 28 U.S.C. § 2255(f). The limitation period runs from one of several events; the pertinent event in this case is "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1).
Petitioner's judgment issued on December 5, 2012, [Doc. 118], and he filed his notice of appeal on December 12, 2012. [Doc. 120]. The Sixth Circuit decided Petitioner's appeal on February 25, 2015, [Doc. 134] and, ninety days later, upon the lapse of the period for petitioningthe Supreme Court for certiorari, see Sup. Ct. R. 13.1, Petitioner's conviction became final. Clay v. United States, 537 U.S. 522, 525 (2003) (). Thus, Petitioner's conviction became final on May 27, 2015, which means that his § 2255 motion and any proposed amendments would be timely if they were filed on or before May 26, 2016. Because Petitioner filed his § 2255 motion on February 29, 2016, it is timely. Petitioner's motion to amend was filed on October 31, 2017—some one year and five months after the date on which lapsed the one-year limitations statute under § 2255(f)(1).
However, under Rule 15 of the Federal Rules of Civil Procedure, amendments filed after the statute of limitations has expired that "relate back" to the original pleading are allowed under certain circumstances.2 Mayle v. Felix, 545 U.S. 644, 664 (2005) (applying Rule 15(c)(2) to § 2254 petitions); Howard v. United States, 533 F.3d 472, 475-76 (6th Cir. 2008) (applying Rule 15(c)(2) to § 2255 motions). Therefore, unless the claims contained in the motion to amend relate back under Federal Rule of Civil Procedure 15(c)(2) to the claims alleged in the timely filed § 2255 motion, the proposed claims are time-barred. The question then is whether the amendments are timely because they relate back to the original filing date.
Whether claims relate back "depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." Mayle, 545 U.S. at 659 (citation omitted). An amended § 2255 motion will not relate back if it asserts "a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650.
There are four numbered claims in the proposed amended § 2255 motion, and those four claims, for the most part, iterate the claims made in the initial motion, either by doing so outright, by incorporating the timely claims, or by making the same or similar arguments to those that were offered in support of the timely claims. However, the proposed amended § 2255 contains four additional sub-claims of ineffective assistance: (1) that counsel abandoned Petitioner's actual innocence defense, in that Petitioner is both factually and legally innocent, [Doc. 159-1 at 4-6]; (2) that counsel did not appropriately question witnesses, [Id. at 7]; (3) that counsel did not allow and assist Petitioner to testify, [Id.]; and (4) that counsel failed to call Jessica Riley, one of Petitioner's restaurant co-workers with whom Petitioner had an affair, to testify on Petitioner's behalf. [Doc. 159-2 at 13].
No claims similar in type to these four intended claims were raised in the original § 2255 motion. True, the initial motion to vacate alleged claims of ineffective assistance of counsel. Nonetheless, the attorney missteps now alleged (abandonment of actual innocence defense, inadequate questioning of witnesses, failure to allow and assist Petitioner to testify, and failure to call Ms. Riley as a witness) are not similar in type to the asserted attorney shortcomings presented in that pleading. See United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (). Because the proposed amended claims do not share "a common core of operative facts" with the claims raised initially, the newly minted claims do not relate back to the timely claims in the motion to vacate.
Therefore, because the statute of limitations expired on May 26, 2016, for Petitioner to file a § 2255 motion and any amendments to that motion and because Petitioner did not file his motionto amend until October 31, 2017, the four new sub-claims of ineffective assistance are time-barred under subsection § 2255(f)(1).
In view of the foregoing reasoning, Petitioner's motion to amend will be GRANTED, in part, as to the restated claims, and will be DENIED, in part, as to all other claims.
In a two-count indictment issued by the grand jury on May 11, 2010, Petitioner was charged with receipt of child pornography (count one) and possession of child pornography (count two). [Doc. 1]. On November 5, 2010, Petitioner moved for a psychiatric examination to determine his competency to stand trial and his present mental status. [Doc. 20]. Five days later, the motion was granted. [Doc. 22]. Petitioner was evaluated at the Bureau of Prisons facility at FMC Butner, North Carolina, and the results were reported to the Court. [Doc. 28, sealed]. Following a hearing on the issue, Petitioner was determined to be competent to stand trial. [Doc. 35, sealed].
Petitioner was tried before a jury on May 8-10 of 2012. [Doc. 106]. At the trial, the prosecution presented as a witness Petitioner's wife, Julianne Noble, who testified that on three occasions she had discovered images of children in a desktop computer she shared with her husband, that those children in the images wore little or no clothing, that some were engaged in sexual intercourse with adults, and that she deleted those images on two occasions and warned Petitioner about the images she had seen. [Id. at 43, 48-56]. Ms. Noble stated that, when she confronted Petitioner, he attributed the images to a "hacker," see United States v. Riggs, 739 F. Supp. 414, 423 (N.D. Ill. 1990) (). [Doc. at 86-87].
Ms. Noble averred that she again found such images on the desktop, that she again confronted Petitioner about those images, and that at some point Petitioner protected access to the computer with a password that he did not disclose to her. [Id. at 87]. Ms. Noble further averred that, on a third occasion, she discovered such images, along with videos, one of which depicted a little boy giving oral sex to an older man. [Id. at 54]. She stated that she copied the images to a disc—a disc that is missing—and that she did not delete the images. [Id.]. Ms. Noble testified that, the next time she discovered similar images on the computer, the children in the images were naked and were spreading their legs....
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