ORDER DENYING MOTION TO AMEND,
(DOCKET ENTRY 27)
DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
ORDER OF DISMISSAL,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL On April 14, 2011, Defendant, Jeffery J. Smith, Bureau of Prisons registration number 22535-076, an inmate at the Federal Correctional Institution in Yazoo City, Mississippi, filed a pro se motion under 28 U.S.C. § 2255. (Docket Entry ("D.E.") 1.) On July 25, 2012, the Court directed the United States to respond to the motion which it submitted on December 31, 2013. (D.E. 4, 26.) On January 17, 2014, Defendant filed a traverse seeking to supplement and amend the motion to vacate. (D.E. 27.)
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (codified, inter alia, at 28 U.S.C. § 2244 et seq.) ("AEDPA") amended 28 U.S.C. §§ 2244(b) and 2255 to limit a defendant to his direct appeal and one collateral attack, filed within one year of the date his conviction is final. Because this motion was filed after April 24, 1996, the AEDPA is applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Paragraph (f) of 28 U.S.C. § 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Id.
"As a general matter, a conviction becomes final for purposes of collateral attack at the conclusion of direct review." United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002). Because Smith did not take a direct appeal, his judgment of conviction became final on April 28, 2010, fourteen days after the entry of judgment. See Fed. R. App. P. 4(b)(1)(A) (2009). The running of the § 2255 statute of limitations commenced on that date, and it expired one year later, on April 28, 2011.
The mandate of Fed. R. Civ. P. 15(a), that a court freely grant leave to amend when justice so requires, has been interpreted to allow supplementation and clarification of claims initially raised in a timely § 2255 motion. See Anderson v. United States, 39 F. App'x 132, 136 (6th Cir. 2002); Oleson v. United States, 27 F. App'x 566 (6th Cir. 2001). The time to amend to raise additional claims expired in 2011. To the extent Defendant's traverse filed on January 17, 2014, raises additional claims, those assertions are time barred.
Once the statute of limitations has expired, allowing amendment of a petition to allege additional grounds for relief would defeat the purpose of the AEDPA. Oleson, 27 F. App'x at 571 (citing United States v. Thomas, 221 F.3d 430, 436 (3d Cir. 2000) ("[A] party cannot amend a § 2255 petition to add a completely new claim after the statute of limitations has expired.")). Smith's traverse supplements his contention that counsel failed to advise him of the effect of any applicable enhancements on the length of his sentence or his potential statutory sentence before he entered his guilty plea. (D.E. 27 at 2.) The Court will consider the supplemented claims in its determination.The traverse also seeks to amend the motion to vacate to raise new claims: counsel failed to file a notice of appeal as requested and Smith's entitlement to relief under the Fair Sentencing Act. The new claims are barred by the AEDPA statute of limitations. (D.E. 27 at 5-15.) The motion to amend is DENIED.
On October 20, 2008, a federal grand jury returned a two-count indictment against Smith and five co-defendants. (Criminal Docket Entry ("Cr. D.E.") 1.) He was charged in Count One with conspiracy to possess with intent to distribute and distribution of over 50 grams of cocaine base (crack cocaine), in violation of 18 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. (Id.) In Count Two, Smith was charged with aiding and abetting in the same activity as in Count One, in violation of 18 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. (Id.) On June 26, 2009, Defendant pled guilty to Count One pursuant to a written plea agreement, which provided as follows:
Come now the parties herein, the Defendant, JEFFREY SMITH, being represented by counsel, STEVE WEST, and the United States being represented by JERRY R. KITCHEN, Assistant United States Attorney for the Western District of Tennessee and hereby agree as follows:
1. The following plea agreement constitutes the entire agreement between the parties and the parties agree that any issues not specifically addressed by this plea agreement shall be resolved by the Court in accordance with the applicable statutes, guidelines, rules, and case law.
2. The [D]efendant agrees to plead guilty to Count 1 of the Indictment in the above-styled cause. The [D]efendant will pay the $100.00 special assessment prior to sentencing.
3. There is no agreement as to the appropriate criminal history of the defendant.
4. Should it be judged by the Government that the [D]efendant has committed or attempted to commit any additional crimes or has engaged in any conduct constituting[ ] obstructing or impeding justice within the meaning of United States Sentencing Guidelines Section 3C1.1 or has failed to make any court appearances in this case, from the date of the [D]efendant's signing of this plea agreement to the date of the [D]efendant's sentencing, or if the [D]efendant attempts to withdraw his/her plea, the Government will be released from its obligations and would become free to argue for any sentence within statutory limits. Such a breach by the[D]efendant would not release the [D]efendant from this plea of guilty.
5. Based on the Defendant's anticipated future assistance to the Government, it is contemplated that the Government may recommend to the Court a departure in the Defendant's sentence pursuant to U.S. Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e). This would be solely within the discretion of the Government and is not part of the plea agreement. Substantial assistance is understood by both parties to require good faith during all phases of the cooperation period, including the Defendant's provision of complete and truthful information which assists in the investigation or prosecution of other individuals and complete and truthful testimony at subsequent proceedings when needed. The Defendant acknowledges that the Government's determination of whether the Defendant has cooperated fully and provided substantial assistance, and the Government's assessment of the value, truthfulness and completeness of the Defendant's assistance, is solely within the judgment and discretion of the Government and shall be binding upon the Defendant.
6. The parties agree that the Government will recommend the following: (1) that the Defendant receive a three-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines § 3E1.1; (2) that the Defendant be sentenced at the lowest end of the applicable guideline range; and (3) that the amount of Cocaine attributable to the Defendant is at least 2 kilograms but less than 3.5 kilograms.
7. The Defendant is aware that Title 18 United States Code, section 3742 affords him/her the right to appeal the sentence imposed in this case. Acknowledging this, in exchange for the undertakings made by the United States in this plea agreement, the [D]efendant hereby waives all rights conferred by Section 3742 to appeal any sentence imposed, including any restitution order, or to appeal the manner in which the sentence was imposed, unless the sentence exceeds the maximum permitted by statute or is the result of an upward departure from the guideline range that the court establishes at sentencing. The [D]efendant further understands that nothing in this agreement shall affect the government's right and/or duty to appeal as set forth in Title 18, United States Code, Section 3742(b). However, if the United States appeals the [D]efendant's sentence pursuant to Section 3742(b), the [D]efendant shall be released from the above waiver of appellate rights. By signing this agreement, the [D]efendant acknowledges that he/she has discussed the appeal waiver set forth in this agreement with his/her attorney. The [D]efendant further agrees together with the United States, to request that the district court enter a specific finding that the [D]efendant's waiver of his/her right to appeal the sentence to be imposed in this case was knowing and voluntary.
8. The [D]efendant understands and agrees that the Court will make the final determination of facts as to any sentence and as to any mitigating or aggravating factors concerning the sentence to be imposed. Adverse rulings by the Court shall not be grounds for the withdrawal of the Defendant's guilty plea or to appeal any sentence imposed. The Court is not limited to consideration of the facts and events provided by the Government.
9. There are no other agreements between and among the parties to this agreement. The [D]efendant enters this agreement freely, knowingly, and voluntarily, and upon the advice of counsel.
(Cr. D.E. 133 at 1-4.)
On April 13, 2010, the Court sentenced Smith to one hundred forty months imprisonment, to be followed by a five-year term...
