Randy Wilcher v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 8, 2020
• Docket: 10-10516
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10516 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:18-cv-04463-TWT, 1:10-cr-00025-TWT-LTW-1

RANDY WILCHER,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(April 8, 2020)

Before WILSON, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Randy Wilcher, a federal prisoner serving a 188-month sentence enhanced

by the Armed Career Criminal Act (“ACCA”), appeals the district court’s dismissal, as successive and untimely, of his motion to amend his 28 U.S.C. § 2255

motion. In Wilcher’s original § 2255 motion, he argued that (1) he did not qualify

for the ACCA enhancement because a jury did not find beyond a reasonable doubt

that his prior convictions constituted serious drug offenses; and (2) his 1988

conviction was for simple possession, and therefore, counsel was ineffective for

failing to properly challenge the district court’s use of that conviction for the

ACCA enhancement. Subsequently, Wilcher sought to amend his § 2255 motion

to add a claim that his ACCA-enhanced sentence was no longer valid because the

state court had recently clarified that the 1988 conviction on which his ACCA

sentence was based was for simple possession rather than possession with intent to

distribute. On appeal, Wilcher argues that his motion to amend is not successive

because the state court’s clarification of his 1988 conviction did not occur until

after he filed his initial § 2255 motion. He also argues that his motion to amend is

not untimely because he diligently challenged his 1988 conviction and his claim

relates back to the claims in his original § 2255 motion.1

We review de novo a district court’s dismissal of a § 2255 motion as

successive. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). We also

1 Wilcher raised a second issue in the motion to amend—that his counsel was ineffective for failing to seek clarification of the 1988 conviction sooner. On appeal, however, he only addresses the claim that his ACCA sentence is invalid. Therefore, he has abandoned any argument that the district court erred in dismissing his motion to amend as to the ineffective- assistance-of-counsel claim. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). 2 review de novo the dismissal of a § 2255 motion as untimely. Id. We review the

application of Federal Rule of Civil Procedure 15(c) to § 2255 motions for an

abuse of discretion. Davenport v. United States, 217 F.3d 1341, 1343 n.4 (11th

Cir.2000). A district court abuses its discretion when it “applies the wrong law,

follows the wrong procedure, bases its decision on clearly erroneous facts, or

commits a clear error in judgment.” United States v. Brown, 415 F.3d 1257, 1266

(11th Cir. 2005).

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that a prisoner in federal custody may file a motion to vacate, set aside, or

correct his sentence on the grounds “that the sentence was imposed in violation of

the Constitution or laws of the United States, or that the court was without

jurisdiction to impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral attack.” 28

U.S.C. § 2255(a). Only one § 2255 motion is authorized, and we must certify a

second or successive motion before the district court can reach the merits of the

motion. Boyd, 754 F.3d at 1301; 28 U.S.C. § 2244(b) (providing procedures for

bringing a successive habeas corpus petition); 28 U.S.C. § 2255(h) (incorporating

the procedures of § 2244(b) into the procedures for successive § 2255 motions).

However, “the phrase ‘second or successive’ is not self-defining and does

not refer to all habeas applications filed second or successively in time.” Stewart

3 v. United States, 646 F.3d 856, 859 (11th Cir. 2011). “[W]hen a petitioner raises a

claim that could not have been raised in a prior habeas petition, courts have

forgone a literal reading of ‘second or successive.’” Id. at 860. For example, in

Panetti v. Quarterman, the Supreme Court created an exception to § 2244(b) for a

second habeas petition raising a claim that would have been unripe had the

prisoner presented it in his first petition or motion. 551 U.S. 930, 945 (2007)

(concluding that the AEDPA’s limitation on second or successive petitions did not

govern habeas petitions raising a claim of incompetency under Ford 2 filed as soon

as that claim was ripe). In Stewart, we applied Panetti and held that a prisoner’s

second § 2255 motion was not successive because the factual basis for his claim—

the vacatur of the state convictions used to enhance his federal sentence—did not

exist before the proceedings on his first § 2255 motion had concluded. 646 F.3d at

864–65.

The AEDPA also imposes a one-year statute of limitations for filing a

§ 2255 motion, which begins to run following the latest of four possible dates:

(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 . . . ; (3) the

2 In Ford v. Wainwright, 477 U.S. 399, 409–10 (1986), the Supreme Court held that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.

4 date on which the right asserted was initially recognized by the Supreme

Court . . . ; or (4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due diligence.” 28

U.S.C. § 2255(f).

Rule 15(a) permits a party to amend a pleading once “as a matter of course”

within 21 days after serving it or after service of a responsive pleading.

Fed. R. Civ. P. 15(a). Otherwise, a party may amend a pleading “only with the

opposing party’s written consent or the court’s leave.” Id. Rule 15(c) allows an

amended pleading to relate back to the date of the original pleading if, in relevant

part, it “asserts a claim or defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.

Civ. P. 15(c)(1)(B). Thus, if an otherwise untimely § 2255 claim “relates back” to

a timely § 2255 claim, it will be treated as filed when the timely § 2255 claim was

filed. Davenport, 217 F.3d at 1344. In the habeas context, it is not enough for the

later pleading to concern the same legal proceeding as the original motion. Mayle

v. Felix, 545 U.S. 644, 662–64 (2005). Rather, to relate back, the original and

amended pleadings must “state claims that are tied to a common core of operative

facts.” Id. at 664.

In Davenport, we determined that a movant’s new claims in his amended

§ 2255 motion did not relate back to the date of his timely filed § 2255 motion.

5 217 F.3d at 1346. In his original § 2255 motion, the movant argued that his

counsel was ineffective for not objecting that the drugs he had in his possession

were not crack cocaine because they lacked sodium bicarbonate, not objecting to

the drug weight as improperly including certain moisture content, and not asserting

that the government allowed its witness to perjure itself. Id. In his amended

motion, he argued that counsel was ineffective for allowing him to be sentenced

based on three grams of cocaine that were not part of the same course of conduct

as another drug transaction, relying on a summary lab report instead of a complete

lab report, and failing to advise him about a plea agreement. Id. We concluded

that the movant’s new claims did not “arise out of the same set of facts as his

original claims, but arose from separate conduct and occurrences in both time and

type.” Id. Accordingly, we held that the district court correctly determined that

the claims in the movant’s amended motion were time-barred under the AEDPA.

Id.

In Dean v. United States, we concluded that three of the claims in the

movant’s amended § 2255 motion related back to his initial, timely motion, while

one of the claims did not. 278 F.3d 1218, 1223 (11th Cir. 2002) (per curiam). We

determined that the movant’s first amended claim, that the government knowingly

presented perjured testimony of three named witnesses, related back to the claim in

his original motion that his conviction was obtained by use of perjured testimony.

6 Id. at 1222. We determined that the amended claim was timely because it arose

out of the same conduct or occurrence set forth in the original pleading—perjured

testimony at trial—and sought to add facts and specificity—the names of the exact

witnesses—to the original claim. Id. Similarly, we determined that his fifth

amended claim, that the court failed to make individual findings as to the amount

of crack cocaine with which he was involved, pursuant to U.S.S.G. § 1B1.3(a)(1),

related back to his original claim of the “incorrect use” of §§ 1B1 and 3B1. Id.

Though the district court found that this claim was “entirely new” because the

original ground could have referred to any of the ten subsections of § 1B1, we

determined, instead, that the amended claim was a more carefully drafted version

of the original claim. Id.

Conversely, we determined that the movant’s fourth amended claim, that his

base offense level under U.S.S.G. § 2D1.1 was calculated erroneously, did not

relate back to his original claim because he did not make such an argument at all in

his original motion. Id. at 1222–23. Finally, we determined that the sixth

amended claim, that the district court erred in allowing evidence of uncharged

misconduct, related back to the movant’s original claim that the district court failed

by allowing the government to enter inadmissible evidence at trial, because it

“gave notice that [the movant] believed that there was inadmissible evidence used

against him at trial.” Id. at 1223. Accordingly, we determined that the first, fifth,

7 and sixth amended claims met the intent of Rule 15(c) because they were “not

entirely new claims” and “[e]ach of them serve[d] to expand facts or cure

deficiencies in the original claims.” Id.

Here, the district court erred when it determined that Wilcher’s clarification-

based claim did not relate back to the claims in his original section 2255 motion

and, therefore, was untimely, as the claims all arose from a common core of

operative facts. See Merle, 545 U.S. at 664. Accordingly we vacate and remand.

VACATED AND REMANDED.