U.S. v. Gonzalez

Decision Date29 December 2009
Docket NumberNo. 07-40517.,07-40517.
Citation592 F.3d 675
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Raul GONZALEZ Jr., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

David Clayton Searle (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Steven Jay Rozan (argued), Steven Rozan & Associates, Houston, TX, for Gonzalez.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES, DENNIS and ELROD, Circuit Judges.

PER CURIAM:

This appeal arises from the district court's decision to deny Petitioner Raul Gonzalez Jr.'s 28 U.S.C. § 2255 motion collaterally attacking his sentence. We granted a Certificate of Appealability (COA) on two issues: (1) whether we should take cognizance of an issue not raised in the parties' original briefs: that the court below had abused its discretion by denying petitioner leave to amend his § 2255 motion; and (2) if we do take cognizance of this issue, whether it has merit. Having reviewed the parties' briefs and heard oral argument in this matter, we affirm.

I. FACTUAL BACKGROUND

In May of 2004, Gonzalez entered the United States Border Patrol Checkpoint near Hebronville, Texas driving a tractor trailer. A border patrol agent questioned Gonzalez about his citizenship and noticed that Gonzalez was sweating and avoiding eye contact. When asked about the contents of the trailer, Gonzalez stated that it was empty. After drug dogs alerted to the trailer, the authorities discovered 268 bundles of marijuana weighing a total of 1,476.44 kilograms. DEA agents subsequently discovered 23.58 kilograms of cocaine concealed among the bundles of marijuana.

II. PROCEDURAL HISTORY

A jury convicted Gonzalez of possession with intent to distribute marijuana and cocaine. At sentencing, counsel for Gonzalez argued that the United States Sentencing Guidelines were unconstitutional in light of the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court concluded that it was bound to apply the Guidelines as mandatory under United States v. Pineiro, 377 F.3d 464 (5th Cir.2004), vacated, 543 U.S. 1101, 125 S.Ct. 1003, 160 L.Ed.2d 1006 (2005), remanded to 410 F.3d 282 (5th Cir.2005). Gonzalez's counsel did not file a notice of appeal; therefore his conviction became final when the deadline for filing an appeal expired on February 28, 2005. See United States v. Plascencia, 537 F.3d 385, 388 (5th Cir.2008). After Gonzalez was convicted, the Supreme Court held that the mandatory United States Sentencing Guidelines were unconstitutional. United States v. Booker, 543 U.S. 220, 263-65, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

In March of 2005, Gonzalez filed a pro se § 2255 motion and supporting brief in which he asserted that "[a] recent Supreme Court decision determined that the Federal Sentencing Guidelines were unconstitutional." In this motion, Gonzalez asserted that he received ineffective assistance of counsel. Gonzalez subsequently filed an additional § 2255 motion in which he argued other issues that are not relevant here. In September of 2005, at Gonzalez's request, the district court dismissed the entire proceeding without prejudice.1 In November of 2005, Gonzalez filed a motion requesting appointment of counsel in order to pursue a claim of ineffective assistance of counsel due to his attorney's failure to file a notice of appeal. On December 7, 2005, Gonzalez timely filed the instant § 2255 motion. In his supporting brief, he again claimed that he had received ineffective assistance of counsel, but did not mention his attorney's alleged failure to file a notice of appeal. Rather, he claimed that his attorney had committed several errors during the sentencing phase and had advised him to proceed to trial in the face of overwhelming evidence.

In July of 2006, more than one year after his conviction became final, Gonzalez filed a motion for leave to amend his § 2255 pleading to include a claim of ineffective assistance based on his attorney's failure to file an appeal. The district court refused to allow the amendment, reasoning that the failure to file an appeal "was not a newly discovered [sic] issue" that could not have been raised in the initial motion. At the time the court issued its order, the government had not yet filed its response to the petition. The district court ultimately denied the § 2255 motion and denied a COA. We granted a COA on the question of whether the district court abused its discretion2 when it refused to allow Gonzalez to amend his § 2255 motion. United States v. Gonzalez, No. 07-40517 (5th Cir. July 15, 2008) (unpublished COA order).

III. DISCUSSION

We first address the question of whether we should take cognizance of the issue that was not raised in the parties' original briefs: that the district court abused its discretion when it denied Gonzalez leave to amend his § 2255 motion. The government appears to have conceded this point by proceeding immediately to argument on the merits. We have previously exercised our discretion to consider unraised issues in COA petitions in light of similar concessions made by the government. See, e.g., United States v. Merrifield, 339 Fed.Appx. 374 (5th Cir.2009) (unpublished). Of course, we are mindful of the Supreme Court's admonition that courts should "normally decide only questions presented by the parties." Greenlaw v. United States, ___ U.S. ___, 128 S.Ct. 2559, 2564, 171 L.Ed.2d 399 (2008) (internal quotation marks and citation omitted). The Supreme Court has recognized, however, that appellate courts may depart from the principle of party presentation in criminal cases to protect the rights of pro se litigants. Id. (citing Castro v. United States, 540 U.S. 375, 381-83, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)). We find that this case warrants such a departure.

In order to decide whether the district court abused its discretion by refusing to allow Gonzalez leave to amend his § 2255 motion, we must first determine whether Gonzalez filed his motion to amend within the one-year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2255(f)(1). We conclude that he has not. AEDPA requires a prisoner in federal custody to bring his motion for relief no later than one year after his conviction becomes final. Id. As the government emphasized in its brief and at oral argument, Gonzalez's conviction became final on February 28, 2005. Gonzalez did not seek leave to amend his § 2255 motion until July 25, 2006, well after the one-year limitations period had expired. In order to demonstrate that the district court abused its discretion, Gonzalez must overcome the time-bar on the claim raised in his proposed amendment.

Gonzalez first argues that his new claim is not time-barred because it relates back to his original § 2255 pleading under Federal Rule of Civil Procedure 15(c)(1). It is well settled that Rule 15 applies to federal habeas proceedings. See United States v. Saenz, 282 F.3d 354, 356 (5th Cir.2002). "An amendment to a pleading relates back to the date of the original pleading when ... the amendment asserts a claim or defense that arose out the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading ...." Fed.R.Civ.P. 15(c)(1)(B).

Gonzalez urges us to hold that his motion to amend automatically relates back to his original pleading because the underlying theory of the claims is the same: ineffective assistance of counsel. In addressing this question, we are guided by the Supreme Court's decision in Mayle v. Felix, in which the Court held that claims raised in an amendment to a habeas petition did not automatically relate back merely because they arose out of the same trial and conviction. 545 U.S. 644, 650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). The Court explained that amendments do not relate back if they assert "a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. We have not yet determined how Felix's holding applies to habeas amendments seeking to add new claims of ineffective assistance of counsel to preexisting claims. Cf. United States v. Lewis, 182 Fed.Appx. 344, 345 (5th Cir. 2006) (unpublished) (declining to reach the question of whether the petitioner's amendment satisfied the relation-back test).

Two of our sister circuits, however, have held that, under Felix, one claim of ineffective assistance does not automatically relate back to another simply because the two claims both rest on a violation of the Sixth Amendment. See, e.g., United States v. Hernandez, 436 F.3d 851, 858 (8th Cir.2006); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.2005). In Ciampi, the First Circuit applied Felix's "stringent standard" and held that a claim of ineffective assistance arising out of the attorney's alleged failure to discuss the petitioner's appellate rights with him did not relate back to the original claim dealing with the attorney's advice to accept a plea bargain. 419 F.3d at 24. The court determined that a petitioner "does not satisfy the Rule 15 `relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance." Id. (citations omitted). The Eighth Circuit echoed this reasoning, finding that claims relating to the attorney's failure to cross examine two witnesses and those relating to the failure to object to evidence were "not similar enough to satisfy the `time and type test'" espoused in Felix. Hernandez, 436 F.3d at 858.

Several pre-Felix decisions also indicate that ineffective-assistance claims should not automatically satisfy the test for relation back simply because they rest on the same constitutional violation. The Eleventh ...

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