United States v. Brunsman

• Decision Date: 22 May 2013
• Docket Number: Also Case No. 1:13-cv-120,Case No. 1:11-cr-014
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. RICHARD T. BRUNSMAN, JR., Defendant.
• Court: U.S. District Court — Southern District of Ohio

UNITED STATES OF AMERICA, Plaintiff,

v.RICHARD T. BRUNSMAN, JR., Defendant.

Case No. 1:11-cr-014

Also Case No. 1:13-cv-120

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

Dated: May 22, 2013

Chief Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

DECISION AND ORDER

This case is before the Court on Defendant's Motion to Amend his Motion to Vacate under 28 U.S.C. § 2255 (Doc. No. 53). The Motion to Amend was filed April 23, 2013, and served on the United States through the CM/ECF system. Under S. D. Ohio Civ. R. 7.2, the Government's time to respond to the Motion to Amend was twenty-four days or until May 17, 2013. No response has been filed, so the Magistrate Judge proceeds to consider the merits of the Motion without any input from the United States.

A motion to amend is a non-dispositive pre-trial motion which an assigned Magistrate Judge has authority to decide, subject to appeal under Fed. R. Civ. P. 72.

The Rules Governing § 2255 Motions do not expressly speak to amendments, but Rule 12 provides that the Federal Rules of Civil Procedure may be applied to the extent they are not inconsistent with the § 2255 Rules or any statute. Defendant relies on Fed. R. Civ. P. 15 which the Court agrees is appropriately applied to the instant Motion, consistent with past practice ofapplying that Rule to proposed amendments of § 2255 motions and habeas corpus petitions.

The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason -- such as 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 any allowance of the amendment, futility of amendment, etc.

-- the leave sought should, as the rules require, be "freely given."

371 U.S. at 182. In considering whether to grant motions to amend under Rule 15, a court should consider whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d 1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir. 1989). Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980). Likewise, a motion to amend may be denied if it is brought after undue delay or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir. 1990).

There is no suggestion of improper delay in seeking this amendment. Defendant's counsel represents he learned the relevant facts between April 16 and April 23, 2013, the latter being the date the Motion was filed (Motion, Doc. No. 53, PageID 450-451).

Rather the question must be whether the amendment could withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is to allow an opposing party totest whether, as a matter of law, the party purporting to state a claim is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Put another way, "The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright & Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d §1356 at 294 (1990).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) has been re-stated by the Supreme Court:

Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)(" Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007). Twombly overruled Conley v. Gibson, 355 U.S. 41, 45-46 (1957), specifically disapproving of the proposition that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Supreme Court made it clear that Twombly applies in all areas of federal law and not just in the antitrust context in which it wasannounced. Following Iqbal, district courts faced with motions to dismiss must first accept as true all of the factual allegations contained in a complaint. This requirement "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Twombly, 550 U.S. at 555. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Twombly, 550 U.S. at 556. Determining whether a complaint states a plausible claim for relief will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Iqbal, 556 U.S. 662, 678 (2009); Tam Travel, Inc. v. Delta Airlines, Inc. (In re Travel Agent Comm'n Antitrust Litig.), 583 F.3d 896, 903 (6th Cir. 2009). Under Iqbal, a civil complaint will only survive a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. ... Exactly how implausible is "implausible" remains to be seen, as such a malleable standard will have to be worked out in practice." Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629-630 (6th Cir. 2009).

Defendant seeks to add two claims for relief:

1) There was structural error in the Defendant's sentencing proceedings in that the Sentencing Judge failed to disclose to the Defendant, on the record, her opinions expressed at a Status Conference, which arguably provided a basis for recusal, and seek a waiver from the Defendant and/or there was structural error in the Defendant's sentencing proceedings in that the basis for recusal could never be waived and the resulting upward departure was the manifestation of the basis for recusal all to the prejudice of the Defendant.

2) Counsel was constitutionally ineffective in failing to seek the recusal of the Sentencing Judge once her opinions were made known to him and the prejudice that flowed from that ineffectiveness manifested itself in an upward departure from the guideline range and resulted in a sentence of 144 months, forty-seven months higher than the recommended guideline sentence.

These new claims are not based on conjecture about what might be proved. Instead, Defendant's counsel has attached to the Motion a transcript of a March 10, 2011, hearing before Chief Judge Dlott in which the underlying facts on which the two new claims for relief depend are set forth in a certified record (Doc. No. 53-1, PageID 455-461). Thus the question before the Court is not whether Defendant could prove the facts he pleads, but whether those facts are sufficient to support his two new claims.

The facts as reflected in the transcript are that on March 10, 2011, Chief Judge Dlott held a status conference in this case to discuss the question of whether or not she was disqualified from handling the criminal case by her prior involvement in a civil case involving Mr. Brunsman.

Chief Judge Dlott had just been assigned the case on February 23, 2011, when District Judge Sandra Beckwith ordered the case reassigned (Doc. No. 9.) Judge Beckwith's Order does not give a reason for reassignment, but the Minutes from Defendant's plea hearing on February 22, 2011, show an oral request from the Defendant that Judge Beckwith recuse herself and her agreement to do so. The transcript of that proceeding shows that Judge Beckwith disclosed to counsel that she had been a neighbor and friend of Defendant's mother approximately fifty years ago, although they had not kept up (Doc. No. 39, PageID 251-252).

The record also discloses that, before Judge Beckwith, the case had been assigned to District Judges Weber and Barrett, both of whom recused themselves from the case on January 27, 2011, with Orders which are identical to the Order of Recusal filed by Judge Beckwith and state no reasons for doing so. Unlike the situation with Judge Beckwith, there is no record to explain the recusals of Judges Weber and Barrett¹ .

The transcript shows that Chief Judge Dlott revealed to the Defendant, through his counsel, that she had brought some of the underlying facts upon which the criminal case against Mr. Brunsman was based to the attention of the Criminal Chief of the United States Attorney's Office when she had seen a prior civil case involving loans made to Defendant on the same collateral by both LaSalle Bank...