United States v. McCurdy
| Decision Date | 27 September 2013 |
| Docket Number | 1:06-cr-00080-JAW |
| Parties | UNITED STATES OF AMERICA v. MARK MCCURDY |
| Court | U.S. District Court — District of Maine |
ORDER ON DEFENDANT'S FIRST AND SECOND MOTIONS FOR LEAVE
TO FILE SUPPLEMENTAL PLEADINGS AND ON DEFENDANT'S MOTION
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT
Mark McCurdy, an inmate now serving a 210 month federal sentence for being a felon in possession of a firearm, brought this habeas corpus petition on August 4, 2011, to vacate his conviction. The original petition claimed four grounds for relief: three based on ineffective assistance of counsel, and one based on prosecutorial misconduct. Along the way Mr. McCurdy has filed, among other things, two Motions for Leave to File Supplemental Pleadings, seeking to add two new grounds—both related to ineffective assistance of counsel—to the original four. The Court granted Mr. McCurdy leave to file these pleadings but has not ruled on the merits of any of Mr. McCurdy's six grounds for relief. Now before the Court is the habeas petition, twice supplemented. Also before the Court is a Motion for Leave to Request Discovery. The Court denies the habeas petition and denies without prejudice the Motion for Leave to Request Discovery.
Title 28 U.S.C. § 2255 (2012) empowers a federal district court to vacate, set aside, or correct a sentence imposed by any federal court in violation of the Constitution or laws of the United States. However, the Court considering the petition may dismiss it without an evidentiary hearing "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." R. GOVERNING § 2255 PROCEEDINGS 4(b) (Habeas Rule 4(b)). The prisoner bears a heavy burden to demonstrate entitlement to an evidentiary hearing. Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003).
Section 2255 has a one-year limitations period. § 2255(f). Four events can start the limitation period running, of which two are relevant here: "the date on which the judgment of conviction becomes final," id. § 2255(f)(1), or "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." Id. § 2255(f)(4). A judgment becomes final, for purposes of § 2255(f)(1), on the date the Supreme Court denies certiorari to the petitioner or when the time for seeking certiorari expires. In re Smith, 436 F.3d 9, 10 & n.1 (1st Cir. 2006) (per curiam). The latest in time triggering event is used to measure the limitations period. § 2255(f).
"Federal Rule of Civil Procedure 15 governs amendments to habeas petitions in a § 2255 proceeding." United States v. Ciampi, 419 F.3d 20, 23-24 (1st Cir. 2005). An "otherwise untimely pleading amendment . . . [may] 'relate back' to the date ofthe timely-filed original pleading provided the claim asserted in the amended plea 'arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'" Id. at 23 (quoting FED. R. CIV. P. 15(c)(2)) (emphasis in original). However, the First Circuit instructs habeas courts to strictly construe the "relate back" provision in § 2255 proceedings. Id. The proposed amendment must relate to the "same core facts" as the original petition, and "not depend upon events which are separate both in time and type from the events upon which the original claims depended." Id.
The Supreme Court has defined a two part test for ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is only constitutionally deficient if it falls below an "objective standard of reasonableness," id. at 688, and there is a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. Judicial scrutiny of counsel's conduct is "highly deferential" and will presume that it "'falls within the wide range of reasonable professional assistance.'" United States v. Bucuvalas, 98 F.3d 652, 658 (1st Cir. 1996) (quoting United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993)). Put another way, counsel's performance will be deemed ineffective only if the attorney fails to pursue an argument that is "so obvious and promising that no competent lawyer could have failed to pursue it." Arroyo v. United States, 195 F.3d 54, 55 (1st Cir. 1999).
The procedural history of this habeas petition is tortuous. A federal jury convicted Mr. McCurdy of possession of a firearm by a felon on December 31, 2008.1 Jury Verdict (ECF No. 148). After the verdict, on January 26, 2009, Mr. McCurdy pro se moved for new trial, Def.'s Pro Se Mot. for New Trial (ECF No. 155), and on July 7, 2009, the Court denied the motion. Order Denying Mot. for New Trial (ECF No. 188). On July 21, 2010, the Court sentenced Mr. McCurdy to 210 months incarceration, three years supervised release, and a $100 special assessment. J. (ECF No. 195). Mr. McCurdy appealed to the Court of Appeals for the First Circuit on July 31, 2009. Notice of Appeal (ECF No. 197). On November 16, 2010, the First Circuit affirmed, United States v. McCurdy, No. 09-2101 (1st Cir. Nov. 16, 2010), and on March 21, 2011, the Supreme Court denied Mr. McCurdy's petition for a writ of certiorari. McCurdy v. United States, 131 S. Ct. 1714 (2011) (mem.).
On April 8, 2011, Mr. McCurdy moved again for new trial based on a claim of newly-discovered evidence involving Stephen John Cheney, a Government trial witness, and Mr. McCurdy demanded an evidentiary hearing. Def.'s Pro Se Mot. for New Trial (ECF No. 224). He also moved for discovery and for production of documents. Def.'s Pro Se Mot. for Disc. Of Materials Related to Elec. Surveillance ofDef. (ECF No. 227); Def.'s Pro Se Mot. for Produc. Of Docs. (ECF No. 228). On November 9, 2011, the Court issued an exhaustive order denying his motions. Order Denying Def.'s Mots. for New Trial, Disc., and Production (ECF No. 250). On November 21, 2011, Mr. McCurdy appealed that Order to the Court of Appeals for the First Circuit. Notice of Appeal (ECF No. 251).
Meanwhile, on August 4, 2011, Mr. McCurdy filed this habeas petition. Mot. Under § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 240) (Petition). After several extensions, the Government moved for summary dismissal of the petition on December 20, 2011. Gov't's Mot. for Summ. Dismissal (ECF No. 260) (Motion). Mr. McCurdy replied in opposition to the Motion to Dismiss on January 6, 2012. Pet'r's Reply to Gov't's Resp. to § 2255 Mot. (ECF No. 261).
Two and a half months later, on March 16, 2012, Mr. McCurdy moved the Court for permission to file a supplemental pleading to present an additional ground for relief. Mot. for Leave to File Supplemental Pleading (ECF No. 262); Pet'r's Supplemental Pleading to 28 USC § 2255 Mot. (ECF No. 263) (First Supplemental Pleading). On March 19, 2012, the Court granted leave to file the pleading. Order Granting Mot. for Leave to File Supplemental Pleading (ECF No. 264). The Government filed a response to Mr. McCurdy's supplemental pleading on May 9, 2012, arguing that Mr. McCurdy's then-pending appeal of the Court's denial of a separate motion for a new trial stripped the Court of jurisdiction to permit amendment of the habeas petition. Gov't's Resp. to Mot. for Leave to File Supplemental Pleading (ECF No. 267). On April 11, 2012, the Court issued anorder granting the Government's motion to stay the habeas proceedings until the resolution of Mr. McCurdy's appeal. Order Staying 28 U.S.C. § 2255 Mot. (ECF No. 268). On April 23, 2012, Mr. McCurdy moved for reconsideration of the order, and on June 5, 2012, the Court reconsidered the order but affirmed it. Order on Mot. for Recons. (ECF No. 271). Mr. McCurdy's habeas petition remained stayed pending his appeal to the First Circuit. Id. at 2.
Despite the stay order, on May 19 Mr. McCurdy replied to the Government's opposition to his supplemental pleading. Pet'r's Reply to Gov't's Resp. to Supplemental Pleading (ECF No. 269). He also moved for leave to request discovery and for discovery on September 17, 2012, despite the stay. Def.'s Mot. for Disc. (ECF No. 273). On September 21, 2012, the Court dismissed these last two motions without prejudice because they violated the stay order. Order (ECF No. 274).
On October 23, 2012, in a brief Judgment, the First Circuit denied Mr. McCurdy's appeal. United States v. McCurdy, No. 11-2368 (1st Cir. Oct. 23, 2012) (ECF No. 275). This Court received the First Circuit's Mandate on November 28, 2012. Mandate (ECF No. 279).
While the Court awaited the mandate, on November 9, 2012 Mr. McCurdy moved the Court for permission to file a second supplemental pleading, including his proposed sixth ground for relief. Mot. for Leave to File Second Supplemental Pleading (ECF No. 277); Pet'r's Second Supplemental Pleading (ECF No. 277-1) (Second Supplemental Pleading). After the First Circuit returned jurisdiction to this Court on November 28, 2012, the Court granted Mr. McCurdy permission to filehis second supplemental pleading on November 29, 2012. Order Granting Mot. for Leave to File Supplemental Pleadings (ECF No. 280). Three months later, after several extensions granted to the Government, Mr. McCurdy filed a "supplemental memorandum" in response to the Government's original motion for summary dismissal. Pet'r's Supplemental Mem. in re Gov't's Resp. to § 2255 Mot. (ECF No. 294) (Feb. 12, 2013). A week later the Government responded to the second supplemental pleading and the "supplemental memorandum" in one brief. Gov't's Resp. to Mot. for Leave to File Supplemental Pleading (ECF No. 296). Mr. McCurdy replied to the Government's response on March 21, 2013. Pet'r's Reply to...
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