United States v. Duffus ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
4-21-1999
USA v. Duffus
Precedential or Non-Precedential:
Docket 98-1548
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Recommended Citation
"USA v. Duffus" (1999). 1999 Decisions. Paper 106.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/106
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Filed April 20, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-1548
UNITED STATES OF AMERICA
v.
CLINTON DUFFUS a/k/a "Paul Lewis, Beanie"
Clinton Duffus,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Honorable James McGirr Kelly
(D.C. Civ. No. 90-00238-7)
Submitted under Third Circuit LAR 34.1(a)
March 25, 1999
BEFORE: GREENBERG, ROTH, and ROSENN,
Circuit Judges
(Filed: April 20, 1999)
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Assistant United States Attorney
Chief of Appeals
Dina A. Keever
Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Attorneys for Appellee
Arza R. Feldman
Feldman & Feldman
1800 Northern Boulevard
Suite 206
Roslyn, NY 11576
Attorneys for Appellant
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
A jury convicted appellant Clinton Duffus of certain drug-
related offenses including conspiracy to distribute cocaine
and cocaine base, RICO, possession of cocaine with intent
to distribute, and money laundering. The district court on
November 26, 1991, sentenced Duffus to concurrent
sentences so that his effective custodial term was 400
months. Duffus appealed but we affirmed on October 29,
1992, by judgment order. See United States v. Duffus, 980
F.2d 725 (3d Cir. 1992) (table). Duffus did notfile a petition
for certiorari.
In March 1997, Duffus, who was pro se throughout the
proceedings under 28 U.S.C. S 2255 in the district court
involved in this appeal, filed a motion seeking an extension
of time to file a motion to vacate, set aside, or correct
2
sentence pursuant to section 2255.1 While the
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") provides "[a] 1-year period of limitation to a
motion under" section 2255 measured from the latest of
several events, the Department of Justice has taken the
position that prisoners were entitled to a grace period after
AEDPA's effective date of April 24, 1996, to file section 2255
motions. Furthermore, we have held that federal prisoners
were entitled to a full one-year period after April 24, 1996,
to file section 2255 motions so that the AEDPA would not
be "impermissibly retroactive." See Burns v. Morton, 134
F.3d 109, 111-12 (3d Cir. 1998). Without that grace period,
if Duffus had filed a motion for relief under section 2255 in
March 1997, it would have been untimely as it is clear that
in his case the one year would have been measured from
the date when we affirmed his conviction on direct appeal
and the period for seeking a writ of certiorari expired. See
Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999).
Thus, the effect of Burns v. Morton was to make Duffus's
conviction and all other convictions in this circuit otherwise
final before the effective date of the AEDPA, April 24, 1996,
final on that day for purposes of calculating the limitations
period under section 2255.
The district court, by order dated April 18, 1997, denied
_________________________________________________________________
1. Section 2255 provides in relevant part:
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.
3
Duffus's motion for an extension of time to file a motion for
relief under section 2255, as it did not have the authority
to extend the AEDPA statute of limitations. Nevertheless,
the court indicated that Duffus could file his section 2255
motion "and request leave to supplement it within 30 or 60
days."
On April 23, 1997, Duffus filed a timely section 2255
motion within the grace period established by Burns v.
Morton. In his motion Duffus asserted that his attorney had
been ineffective because the attorney failed to contend on
appeal that the evidence was insufficient to convict Duffus
of money laundering and because the attorney failed to
object at sentencing to the district court's use of the
sentencing guidelines in effect at the time of the sentencing
rather than those in effect in April 1988, when Duffus
allegedly withdrew from the conspiracy. Duffus also
asserted that the district court wrongfully attributed more
than 50 kilograms of cocaine to him in calculating his
sentence. The government filed a response urging that the
"motion should be denied in its entirety" on the grounds
that it was procedurally defective and lacking in merit.2
Thereafter on October 28, 1997, more than six months
after Duffus filed his section 2255 motion andfive years
after we affirmed his conviction on his direct appeal, Duffus
moved to amend the motion. His proposed amendment
included various bases for relief and, as germane here,
urged that his trial attorney had been ineffective for failing
to move to suppress evidence. Duffus explained in his brief
supporting his motion to amend that when the Philadelphia
police stopped him on December 31, 1987, while he was
driving a motor vehicle, they said that they did so because
he had run a stop sign. They also stated that he ran away
and dropped a sock containing nine ounces of cocaine
which they recovered.
_________________________________________________________________
2. The government also contended that the petition was late because it
was docketed in the district court on April 29, 1997. The court, however,
regarded it as timely because Duffus placed it in the prison mail box on
April 23, 1997. See Burns v. Morton, 134 F.3d at 112-13. The
government does not challenge this decision on this appeal.
4
Duffus indicated that when he found out that he was
being charged for an offense arising out of his possession of
this cocaine he advised his attorney that the police had
stopped him for no reason and then found the cocaine
inside his vehicle. Nevertheless, his attorney did not move
to suppress the cocaine as evidence and he did not even
investigate Duffus's assertion. Duffus argued that if his
attorney had moved to suppress the evidence there was a
reasonable probability that in evaluating the credibility of
the witnesses the court would have believed him and
granted the motion to suppress. He asserted that
supression of the evidence would have led to his acquittal
on the charge of possession of cocaine with intent to
distribute.
The court referred Duffus's section 2255 motion,
including the motion to amend, to a magistrate judge who
filed a report and recommendation on April 6, 1998,
recommending that the district court deny both Duffus's
original motion and his motion to amend without an
evidentiary hearing. On May 19, 1998, the district court
entered an order approving and adopting the report and
recommendation and denying the section 2255 motion, and
thus the motion to amend as well, without an evidentiary
hearing. Duffus then moved for reconsideration but the
district court denied that motion on July 7, 1998.
Duffus then appealed from the July 7, 1998 order, and
filed a motion asking the district court to issue a certificate
of appealability.3 The district court denied the motion by
order entered August 20, 1998. Duffus also filed a request
for a certificate of appealability with this court which a
motions panel granted on August 20, 1998, on three
issues, the third being Duffus's allegation "that the district
court erred in denying [his] motion to amend his section
2255 motion."4 On August 28, 1998, the government filed
_________________________________________________________________
3. Inasmuch as Duffus filed his section 2255 motion after the effective
date of the AEDPA he was required to seek a certificate of appealability
even though he had been convicted before that date. See United States
v. Skandier, 125 F.3d 178, 180 (3d Cir. 1997).
4. Inasmuch as the district court denied a certificate of appealability,
Duffus's appeal could not go beyond those three issues. See United
States v. Eyer, 113 F.3d 470, 474 (3d Cir. 1997).
5
a motion seeking reconsideration of the order granting the
certificate of appealability which the motions panel referred
to the merits panel.
On this appeal, Duffus argues only that the magistrate
judge and the district court abused their discretion when
they respectively recommended that the amendment not be
allowed and denied the motion to amend. This appeal,
however, can be only from the district court's order. The
particular argument that Duffus sought to make in his
motion to amend, which he presses on this appeal, is that
his attorney rendered ineffective assistance by failing to
move to suppress the nine ounces of cocaine seized when
the police arrested him on December 31, 1987.5
II. DISCUSSION
The magistrate judge recommended that the district court
deny the motion to amend because he concluded that
Duffus's delay in presenting the issues in the amendment
was unwarranted. He pointed out that Duffus waited six
years before he filed the section 2255 motion and that he
had the advantage of the one-year grace period. Moreover,
there was nothing in the motion to amend that could not
have been included in the original motion. The magistrate
judge also noted that the district court indicated that it
would allow Duffus additional time, 30 or 60 days, to move
to supplement his motion. Yet, Duffus filed the motion to
amend well after the court's deadline. Finally, the
magistrate judge said that the motion to amend sought to
advance issues that had "no merit." The district court
entered its order approving and adopting the report and
recommendation and denying the motion to amend without
opinion.
The Federal Rules of Civil Procedure apply to motions to
amend habeas corpus motions. See Riley v. Taylor, 62 F.3d
86, 89 (3d Cir. 1995). We review a district court order
denying a motion to amend for an abuse of discretion. See
id. Rule 15(a) provides that a party may amend his pleading
_________________________________________________________________
5. The amendment raised other issues but Duffus does not advance
them on this appeal.
6
once as a matter of course at any time before a responsive
pleading is filed. In this case, however, the government filed
a responsive pleading before Duffus sought to amend his
motion and it opposed the amendment. Therefore, in issue
here is the portion of Rule 15(a) providing that when
amendment as a matter of course is not allowed, "a party
may amend the party's pleadings only by leave of court
[which] leave shall be freely given when justice so requires."
The Supreme Court has indicated that in the absence of
evidence 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 allowing the amendment [or]
futility of amendment," leave to amend should be freely
given. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227,
230 (1962). Furthermore, we have indicated that ordinarily
delay alone is not a basis to deny a motion to amend. See,
e.g., Riley, 62 F.3d at 91; Cornell & Co., Inc. v. Occupational
Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d
Cir. 1978). Thus, at first glance it might be thought that
Duffus makes a strong showing that the district court
abused its discretion in denying leave to amend unless the
amendment would have been futile.
There is, however, a special situation here. Under the
AEDPA statute of limitations, with its recognized grace
period, Duffus had until April 23, 1997, to file his motion
because 28 U.S.C. S 2255 provides that motions must be
filed within one year from "the date on which the judgment
of conviction becomes final." While section 2255 has three
additional provisions providing for later dates from which
the statute runs, none is implicated here. Thus, in the
absence of the one-year grace period, the AEDPA would
have barred Duffus's motion when the AEDPA became
effective. As we have explained, however, because of the
grace period, Duffus's conviction for purposes of the section
2255 limitations period became final on April 24, 1996.
Accordingly, if the district court had granted the motion to
amend, filed on October 28, 1997, it would have frustrated
the intent of Congress that claims under 28 U.S.C. S 2255
be advanced within one year after a judgment of conviction
becomes final unless any of the other circumstances in 28
7
U.S.C. S 2255 are applicable. Therefore, we cannot possibly
say that the court abused its discretion when it denied the
motion to amend.
We do not go so far as to suggest that the district court
could not have permitted any amendment of the motion
after April 23, 1997. Certainly the court could have
permitted an amendment to clarify a claim initially made.6
Here, however, while Duffus asserted in his initial motion
that his attorney had been ineffective, the particular claim
with respect to failing to move to suppress evidence was
completely new. Thus, the amendment could not be deemed
timely under the "relation back" provisions of Fed. R. Civ.
P. 15(c). As the Court of Appeals for the Eighth Circuit
recently explained in United States v. Craycraft, 167 F.3d
451, 457 (8th Cir. 1999), "If the ineffective conduct alleged
by Craycraft in his first petition cannot be said to have
arisen out of the same set of facts as his amended claim,
his amendment cannot relate back and his claim must be
time-barred since it was filed after the statutory period of
limitation." We find Craycraft to be a compelling precedent.
In these circumstances and considering the April 23, 1997
deadline, the district court was correctly circumspect in
considering an application to amend. Indeed, the court was
generous, perhaps to a fault, in indicating that it would
consider a request made by Duffus, within 30 or 60 days
after he filed his original motion, to supplement the motion.7
We reiterate that if the court permitted the amendment it
would have acted contrary to the policy of the AEDPA,
which requires courts to measure the running of the
limitations periods from the date on which the judgment of
conviction becomes final. While the statute will run from
_________________________________________________________________
6. In our discussion we are proceeding on the understanding that none
of the statutory bases for extending the statute of limitations beyond one
year after the judgment of conviction is applicable here. Obviously we are
not concerned here with an amendment of a section 2255 motion to
advance a claim that is timely under that section.
7. Duffus cannot claim reasonably that the court misled him by
indicating that it would entertain a motion to supplement the original
motion as the court limited the period to file the motion to 30 or 60 days
after Duffus filed his first motion, and Duffus took six months to seek to
amend.
8
"the date on which the facts supporting the claim or claims
presented could have been discovered through the exercises
of due diligence" if that date follows the date the judgment
of conviction becomes final, Duffus was aware of the facts
to support his claim before his conviction becamefinal. In
these circumstances, an amendment to introduce the new
theory into the case that his trial attorney had been
ineffective for failing to move to suppress the cocaine, is
simply not acceptable.
In reaching our result we recognize that the law
governing habeas corpus motions can be quite technical
and that it may be difficult for even an attorney to grasp all
of its nuances. Surely, then, a court could not expect a pro
se litigant such as Duffus to understand all the aspects of
those proceedings. Duffus, however, raised an issue that
was not technical and that he identified before his trial
even began. Moreover, he does not claim that he thought
that his trial attorney in fact moved to suppress. Therefore,
Duffus had every reason to include an argument that his
attorney had been ineffective by failing to move to suppress
evidence in his initial section 2255 motion. Accordingly, the
court did not abuse its discretion in denying the motion to
amend. See Parker v. Champion, 148 F.3d 1219, 1222 (10th
Cir. 1998), cert. denied, 119 S. Ct. 1053 (1999).
We make one final point. We do not suggest that the
government would have been prejudiced by Duffus's delay
if the court granted his motion to amend. In fact, the
magistrate judge recommended rejection on the merits of all
of Duffus's contentions in his initial section 2255 motion,
and clearly he similiarly would have recommended that the
court reject the ineffective assistance of counsel argument
if Duffus had included it in his initial motion. After all, the
magistrate judge said the issues Duffus raised in the
proposed amendment had "no merit." Furthermore, we
cannot say that the passage of time, either from the
conviction date until the time of the initial section 2255
motion, or from the time of that motion until Duffus sought
to amend, would have impaired the government's ability to
prosecute this case if the district court had ordered a new
trial.
9
We do not predicate our result, however, on a finding of
prejudice. Instead, we have reached our conclusion in
recognition of the principle that usually statutes of
limitations operate without taking prejudice from delay into
account. A prisoner should not be able to assert a claim
otherwise barred by the statute of limitations merely
because he asserted a separate claim within the limitations
period.
III. CONCLUSION
For the foregoing reasons we will affirm the order of July
7, 1998.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
10