Vitrano v. United States

• Decision Date: 01 July 2013
• Docket Number: No. 12–1282.,12–1282.
• Citation: 721 F.3d 802
• Parties: Thomas VITRANO, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

721 F.3d 802

Thomas VITRANO, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 12–1282.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 28, 2013.

Decided July 1, 2013.

Robert K. O'Reilly (argued), Attorney, Ademi & O'Reilly, Cudahy, WI, for Petitioner–Appellant.

Gordon P. Giampietro (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Respondent–Appellee.

Before MANION, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

This case requires us to consider whether the district court abused its discretion in denying Thomas Vitrano's motion to amend his 28 U.S.C. § 2255 petition. For the reasons that follow, we find no abuse of discretion and affirm.

I. BACKGROUND

Vitrano was convicted pursuant to his guilty plea of possessing a firearm as a felon, 18 U.S.C. § 922(g)(1), and possessing a firearm while subject to a domestic abuse injunction, id. § 922(g)(8)(B). He was sentenced to 120 months' imprisonment. See18 U.S.C. § 924(a)(2). The government challenged the sentence, arguing that Vitrano should have faced a statutory minimum of at least 180 months' imprisonment because of three prior “violent felony” convictions that subjected him to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). (The prior convictions were for escape and recklessly endangering safety.) We agreed and remanded for resentencing. See United States v. Vitrano, 405 F.3d 506 (7th Cir.2005). Although Vitrano's ACCA guidelines range was 235–293 months, the district court imposed an above-guidelines sentence of 360 months. Vitrano appealed and we affirmed. See United States v. Vitrano, 495 F.3d 387 (7th Cir.2007).

On March 20, 2008, Vitrano moved to vacate his sentence pursuant to 28 U.S.C. § 2255. In his pro se filing, he asserted that his Fifth Amendment rights had been violated, that he had received ineffective assistance of counsel, and that the district court had erred in sentencing him as an armed career criminal. Vitrano claimed that he had recently located a discharge certificate fully restoring the civil rights he lost in connection with a 1977 conviction for endangering safety; if valid, the certificate would render the conviction uncountablefor ACCA purposes, regardless of whether it constituted a “violent felony.” See18 U.S.C. § 921(a)(20); Buchmeier v. United States, 581 F.3d 561, 563–64 (7th Cir.2009) (en banc). In the course of the proceedings, Vitrano claimed the existence of two different original discharge certificates. Forensic testing of both certificates along with a witness's recanted testimony and testimony from other witnesses led the government to conclude that both certificates were “provably fake.” Vitrano v. United States, 643 F.3d 229, 232 (7th Cir.2011) (“Vitrano III ”). So the government opposed Vitrano's § 2255 motion, and Vitrano was indicted with perjury and two counts of corrupt influence in connection with the discharge certificates. See18 U.S.C. § 1623(a); 18 U.S.C. § 1512(b)(1) & (c)(2). The § 2255 proceedings were held in abeyance on June 5, 2009, pending resolution of the criminal case. On December 15, 2009, the district court “invite[d]” Vitrano to file a reply in support of his § 2255 motion.

Instead of filing a reply, however, on January 12, 2010, Vitrano, represented by counsel, sought leave to amend his § 2255 motion. He argued that under Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), his escape conviction is not a “violent felony” for ACCA purposes. He also argued that his convictions for reckless endangerment did not qualify as violent felonies. His proposed amended § 2255 motion failed to assert ineffective assistance of counsel and made no mention of the alleged discharge certificates. The government opposed the motion to amend, contending that by not filing a reply to his initial § 2255 filing, Vitrano had abandoned the motion “in the face of looming defeat” and was barred from filing what was effectively a second or successive § 2255 motion without first obtaining this court's permission. See28 U.S.C. § 2255(h); R. Governing § 2255 Proceedings for the U.S. Dist. Cts. 9.

The district court agreed with the government, dismissed Vitrano's original § 2255 motion as abandoned, and denied his motion to amend as an unauthorized second or successive collateral attack. On appeal, we observed that the district court's conclusion that Vitrano had abandoned his original claims “put the cart a bit before the horse.” Vitrano III, 643 F.3d at 234. We explained that “[h]ad Vitrano wanted to completely abandon his original claims, he could have moved to dismiss them, or simply stopped pursuing his case altogether.” Id. (citations omitted). We held that the motion to amend did not constitute a “second or successive” § 2255 petition because the initial motion had not been conclusively decided, and we remanded for consideration of the motion to amend. Id. at 233–34.

On remand, the district court denied Vitrano's motion to amend. The court cited bad faith and dilatory motive and explained: “By abandoning the claims in his original motion, Vitrano's amendment is an attempt to chart an entirely different course in the face of evidence that his original claims are without merit.” The court determined that this was “meant to evade the limitation on second or successive motions”—“to avoid adjudication on the merits of his initial claims, thereby obtaining a ‘tactical advantage in the face of impending defeat.’ ” (quoting Garrett v. United States, 178 F.3d 940, 943 (7th Cir.1999)). The court gave Vitrano an opportunity to make his “next move”—ordering him to file a reply brief in support of his original motion, or move to voluntarily dismiss the case. Vitrano chose the latter option, and the district court entered judgment dismissing the action.

II. DISCUSSION

We must decide whether the district court abused its discretion in denying Vitrano's motion to amend his § 2255 petition. “An abuse of discretion occurs when a district court resolves a matter in a way that no reasonable jurist would, or when its decision strikes us as fundamentally wrong, arbitrary or fanciful.” United States v. Purnell, 701 F.3d 1186, 1189 (7th Cir.2012) (quotation and citation omitted). We will reverse a denial of leave to amend “only if no reasonable person could agree with [the district court's] decision.” Carroll v. Stryker Corp., 658 F.3d 675, 684 (7th Cir.2011) (quotation and citation omitted).

Vitrano argues that the district court erred in denying his motion because the court relied on a determination that Vitrano acted in bad faith in bringing his original § 2255 petition. (He assumes for purposes of this appeal that the original petition was brought in bad faith.) Vitrano claims that his motion to amend was brought in good faith and is his only chance to present his new claims—that his convictions for escape and reckless endangerment are not violent felonies for purposes of the ACCA—to the court. The government responds that the denial of the motion to amend was reasonable because Vitrano was trying to avoid adjudication on his original and fraudulent claims by seeking to “amend” rather than dismissing them. The government submits that this intent is confirmed by Vitrano's subsequent dismissal of the original claims. Because the proposed amended claims are entirely new claims and unrelated to the original claims, the government argues that the district court's finding of bad faith was justified. Alternatively, the government argues that the proposed amended claims are untimely and without merit.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “allows every prisoner one full opportunity to seek collateral review. Part of that opportunity—part of every civil case—is an entitlement to add or drop issues while the litigation proceeds.” Johnson v. United States, 196 F.3d 802, 805 (7th Cir.1999). Nevertheless, “that entitlement is far from boundless. It is circumscribed by Federal Rule of Civil Procedure 15(a) ... which provides that courts should grant leave to amend freely only ‘when justice so requires.’ ” Vitrano III, 643 F.3d at 234 (quoting Fed.R.Civ.P. 15(a)(2)). A district court has “wide discretion” in deciding whether to grant leave to amend. Id.; see also Johnson, 196 F.3d at 805 (“This is not to say that the judge is required to permit the amendments.”). “Justice generally does not require such leave if a movant demonstrates ‘undue delay, bad faith, or dilatory motive.’ ” Vitrano III, 643 F.3d at 234 (quoting Airborne Beepers & Video, Inc. v. AT & T Mobility, LLC, 499 F.3d 663, 666 (7th Cir.2007)); see also Rutledge v. United States, 230 F.3d 1041, 1051 (7th Cir.2000) (“A district court can refuse to let the defendant amend the petition for reasons such as delay.”).

The propriety of the proposed amendment should be viewed in light of AEDPA, which governs § 2255 proceedings and imposes tight limits on second or successive petitions. See Suggs v. United States, 705 F.3d 279, 285 (7th Cir.2013), cert. denied,––– U.S. ––––, 133 S.Ct. 2339, 185 L.Ed.2d 1064 (2013). Under AEDPA, second or successive motions must be authorized by the court of appeals. See28 U.S.C. §§ 2244, 2255(h); R. Governing § 2255 Proceedings for the U.S. Dist. Cts. 9; United States v. Obeid, 707 F.3d 898, 901 (7th Cir.2013). The federal courts should “police attempted end-runs around the successive petition limitations of § 2255.” Hare v. United States, 688 F.3d 878, 880 n. 3 (7th Cir.2012); cf. Graham v. Johnson, 168 F.3d 762, 780 (5th Cir.1999) (noting that AEDPA “ ‘incorporates reformsto curb the abuse of the statutory writ of habeas corpus' ”) (quoting H.R. Conf. Rep. No. 104–518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 944).

Vitrano is correct that it is the motion to amend that must be made in bad faith. But he errs in asserting that the district court relied on bad faith that was not relevant to his motion...