United States v. Major Ray Brown , 596 F. App'x 209 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAJOR RAY BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00143-D-1; 5:13-cv-00801-D)
Submitted: December 19, 2014 Decided: January 13, 2015
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Major Ray Brown, Appellant Pro Se. Shailika S. Kotiya, Tobin
Webb Lathan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Major Ray Brown seeks to appeal the district court’s
order denying relief on his 28 U.S.C. § 2255 (2012) motion and
failing to consider a new claim raised in his supplemental
pleading. The order is not appealable unless a circuit justice
or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012). A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the
district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists would
find that the district court’s assessment of the constitutional
claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
Brown complains that the district court failed to
address the claim of actual innocence raised in his supplemental
pleading. Brown did not style the supplemental pleading as a
motion to amend, nor did the pleading seek leave of the court to
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amend. We find that any error by the district court in failing
to construe the document as a motion to amend was harmless.
Because the Rules Governing Section 2255 Proceedings
provide no procedure for amending a § 2255 motion, we apply Rule
15 of the Federal Rules of Civil Procedure in assessing a
movant’s effort to amend. See Rule 12, Rules Governing Section
2255 Proceedings (providing district courts may apply Federal
Rules of Civil Procedure); see also United States v. Pittman,
209 F.3d 314, 316-17 (4th Cir. 2000) (applying former Rule 15 to
§ 2255 proceeding). “A party may amend its pleading once as a
matter of course within . . . 21 days after service of a
responsive pleading or . . . a motion under [Fed. R. Civ. P.]
12(b).” Fed. R. Civ. P. 15(a)(1)(B). After this time expires,
“a party may amend its pleading only with the opposing party’s
written consent or the court’s leave,” which should be given
freely “when justice so requires.” Fed. R. Civ. P. 15(a)(2).
However, leave to amend may be denied when the amendment would
be futile, such as when the proposed claim would be time-barred.
Pittman, 209 F.3d at 317.
Brown’s new claim was filed more than one year after
his conviction became final. See United States v. Sanders, 247
F.3d 139, 142 (4th Cir. 2001) (holding judgment becomes final
upon entry of judgment of conviction when no appeal is taken);
cf. Clay v. United States, 537 U.S. 522, 532 (2003) (“[F]or
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federal criminal defendants who do not file a petition for
certiorari with this Court on direct review, § 2255’s one-year
limitation period starts to run when the time for seeking such
review expires.”). Because the actual innocence claim does not
arise from the “conduct, transaction, or occurrence” in the
original pleading, it does not relate back to the date of the
original pleading. Fed. R. Civ. P. 15(c)(1)(B); Pittman, 209
F.3d at 318 (holding new claim must be of same “time and type”
as original claims). Accordingly, any error by the district
court in failing to interpret Brown’s supplemental pleading as a
motion to amend was harmless, as a motion would have been denied
under Rule 15(c).
Brown next contends that he was entitled to an
evidentiary hearing on his claims of ineffective assistance of
counsel. Brown bears the burden of showing that (1) counsel’s
performance was constitutionally deficient and (2) the deficient
performance was prejudicial. Strickland v. Washington, 466 U.S.
668, 687-88, 691-92 (1984). To satisfy the first Strickland
prong, Brown must demonstrate that counsel’s performance fell
below an objective standard of reasonableness under “prevailing
professional norms.” Id. at 688. To establish prejudice in the
context of a guilty plea, Brown must demonstrate “a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill
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v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, Brown “must
convince the court that such a decision would have been rational
under the circumstances.” United States v. Fugit, 703 F.3d 248,
260 (4th Cir. 2012).
Accepting as true Brown’s claim that counsel advised
him that he would be held accountable at sentencing for only 1.9
grams of crack cocaine, Brown cannot establish that, absent
counsel’s representations, he would have chosen to proceed to
trial. At the Fed. R. Crim. P. 11 hearing, the district court
advised Brown that his drug conviction carried a maximum
possible penalty of twenty years’ imprisonment; that any
estimate of Brown’s sentence by defense counsel was not binding
on the court; and that Brown would be unable to withdraw his
guilty plea even if the court imposed the maximum sentence.
Brown, testifying under oath, acknowledged his understanding of
the court’s admonitions, denied that anyone had made any
promises to him regarding his sentence, and proceeded to enter
his plea of guilty. Absent compelling evidence to the contrary,
“the truth of sworn statements made during a Rule 11 colloquy is
conclusively established.” United States v. Lemaster, 403 F.3d
216, 221-22 (4th Cir. 2005).
As reasonable jurists would not find that the district
court’s assessment of the constitutional claims is debatable or
wrong, we deny a certificate of appealability and dismiss the
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appeal. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
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