U.S. v. Johnson, 92-40015-01.

• Decision Date: 13 January 1998
• Docket Number: No. 92-40015-01.,No. 97-3126-RDR.,92-40015-01.,97-3126-RDR.
• Citation: 992 F.Supp. 1257
• Parties: UNITED STATES of America, Plaintiff, v. David Lynn JOHNSON, Defendant.
• Court: U.S. District Court — District of Kansas

992 F.Supp. 1257

UNITED STATES of America, Plaintiff, v. David Lynn JOHNSON, Defendant.

No. 92-40015-01.

No. 97-3126-RDR.

United States District Court, D. Kansas.

January 13, 1998.

COPYRIGHT MATERIAL OMITTED

Jeannine D. Herron, Topeka, KS, Michael M. Jackson, Topeka, KS, for Defendant.

David Lynn Johnson, Leavenworth, KS, pro se.

Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.

This matter is presently before the court upon the government's motion to reconsider. The court has conducted a hearing on this motion and is now prepared to rule.

The government seeks reconsideration of the court's order of September 17, 1997 in which the court held that the defendant had been improperly sentenced to a term of six years of supervised release. The court had concluded that the enhancement provisions of 21 U.S.C. § 841(b)(1)(C) should not have been applied because the government did not file an information setting forth the defendant's prior convictions as required by 21 U.S.C. § 851(a). The court's review of the file in the case revealed that no information concerning the defendant had been filed. In the motion to reconsider, the government contends that the court erred in reaching its conclusion because an information concerning the defendant had in fact been filed. As support for its motion, the government submitted a file-stamped copy of the information. The file stamp indicated that the information had been filed on June 19, 1992, prior to the trial as required by 21 U.S.C. § 851(a).

Prior to reaching the merits of the motion to reconsider, the court finds it necessary to consider two other matters: (1) defendant's motion for leave to file second amended application to set aside judgment and sentence pursuant to 28 U.S.C. § 2255; and (2) defendant's argument that the government's motion to reconsider is procedurally barred.

In the motion for leave to file an amendment to his § 2255 motion, the defendant seeks to add three arguments to the contentions that he has previously raised. He wishes to add claims that (1) his appointed counsel was ineffective during the plea negotiations prior to the trial because she erroneously determined what sentence he would ultimately receive if he went to trial and was convicted; (2) the court failed to comply with Fed.R.Crim.P. 11 in allowing him to withdraw his motion for new trial; and (3) the court, at sentencing, erroneously denied him a reduction for acceptance of responsibility.

The defendant filed his motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on April 9, 1997. On May 22, 1997, the court directed the government to file a response to the defendant's motion. The defendant subsequently filed an amended motion on June 6, 1997. On September 17, 1997 the court granted the defendant's motion in part and denied it in part. The court rejected the defendant's argument that his Fifth Amendment rights had been violated by the government's comments on his post-Miranda silence. The court, however, agreed with the defendant that his sentence of supervised release was in excess of that allowed by law. The court scheduled a hearing for resentencing. On September 25, 1997 the government filed a motion for reconsideration aimed at the court's ruling on the defendant's term of supervised release. A hearing on the government's motion eventually occurred on November 17, 1997. The defendant filed the instant motion for leave to file second amended application to set aside judgment and sentence pursuant to 28 U.S.C. § 2255 on November 13, 1997.

When deciding matters pertaining to § 2255 motions, this court must first look to The Rules Governing Section 2255 Proceedings in the United States District Courts. Although those rules do not specifically address motions to amend § 2255 petitions, Rule 12 states:

If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules, or any applicable statute, and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.

Since it is within the court's discretion to apply the Federal Rules of Procedure, the court shall do so and apply the provisions of Fed.R.Civ.P. 15(a) to the instant motion. Although Rule 15(a) governs amendments to pleadings and does not specifically pertain to amendments to pending motions, we believe that it should be applied here. See Nunez v. United States, 892 F.Supp. 528, 531 (S.D.N.Y.1995).

Fed.R.Civ.P. 15(a) provides, in pertinent part:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served.... Otherwise a party may amend the party's pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

The decision on a motion to amend under Rule 15 lies within the discretion of the court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). A motion to amend may be denied because of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Id.

The court finds that the instant motion must be denied. The defendant's motion comes far too late in the game. The defendant sought to amend after the court had decided the merits of his § 2255 motion. It did come prior to the conclusion of the matter since the government's motion for reconsideration did remain pending. Nevertheless, the defendant's motion came seven months after he filed his motion and after he had already amended the motion once. The defendant offered no explanation for his delay in raising these issues. They are issues that do not concern new facts or new law. The defendant had ample opportunity to develop his habeas claims prior to the requested amendment. Untimeliness alone is a sufficient reason to deny leave to amend. Hom v. Squire, 81 F.3d 969, 973 (10th Cir.1996). In addition, the court finds that the granting of this motion would be futile. For the reasons subsequently stated, the court finds no merit to the arguments raised by the defendant.

The defendant initially suggests that he did not receive effective assistance of counsel because his counsel's plea negotiations were based on the erroneous assumption that he faced a mandatory life sentence if convicted of the charges in this case. The defendant asserts that he was deprived of "the right to enter a plea of guilty" due to his counsel's misunderstanding of the sentence that would be imposed upon him if convicted.

"The benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, he must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is a strong presumption that counsel provided effective assistance of counsel, and the defendant has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The reasonableness of the counsel's performance must be evaluated at the time of the alleged error. Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). "For counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision ... must have been `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'" Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir.1995) (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir.1983), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996)). Neither hindsight nor success is the measure of the reasonableness of counsel's challenged conduct. Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997).

The court must initially note that we do not find that the defendant's counsel's representation fell below an objective standard of reasonableness concerning her view of the defendant's potential sentence. Defendant's counsel believed that the defendant faced a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A)(vii) if convicted. The court, the government and the probation office also had the same belief. The Tenth Circuit determined, however, that the defendant was not subject to the mandatory life sentence contained in 21 U.S.C. § 814(b)(1)(A)(vii) because the defendant was convicted of crimes involving phenyl-2-propanone (P2P), not methamphetamine. United States v. Johnson, 12 F.3d 1540, 1546-47 (10th Cir.1993), cert. denied, 516 U.S. 847, 116 S.Ct. 139, 133 L.Ed.2d 86 (1995). Given the circumstances, we do not find that defendant's counsel's representation was so deficient as to constitute ineffective assistance of counsel. Moreover, "[a] miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance of counsel." United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir.1993), cert. denied, 510 U.S. 1184, 114 S.Ct. 1236, 127 L.Ed.2d 579 (1994). Finally, the court is not persuaded...