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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11544
Non-Argument Calendar
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D.C. Docket Nos. 0:15-cv-62623-DPG; 0:14-cr-60100-DPG-1
MARCKENSON CHERY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 6, 2018)
Before NEWSOM, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Marckenson Chery, proceeding pro se, appeals from the district court’s
denial of his amended 28 U.S.C. § 2255 motion to vacate his 144-month sentence
for enticing a minor to engage in sexual activity. We granted a certificate of
appealability as to “[w]hether the district court erred in its conclusion that no claim
in Chery’s amended 28 U.S.C. § 2255 motion related back to a claim in his
original, timely, motion, and, therefore, whether its subsequent denial of Chery’s §
2255 motion as time-barred was correct.”1 We affirm.
A Section 2255 motion must be filed within one year of the latest of several
events, including (as relevant here) the date on which the judgment of conviction
became final. 28 U.S.C. § 2255(f)(1). An amendment to a Section 2255 motion
“relates back to the date of the original pleading when … the amendment 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).
A claim asserted after the one-year period cannot be revived simply because it
arises out of the same trial, conviction, or sentence as a timely-filed claim. Mayle
v. Felix, 545 U.S. 644, 662 (2005). A new claim relates back to prior claims only
if they are “tied to a common core of operative facts.” Id. at 664. That is, the
untimely claim “must have more in common with the timely filed claim than the
1
Our review is de novo. McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011).
2
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mere fact that they arose out of the same trial and sentencing proceedings.”
Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir. 2000).
Here, Chery had until March 31, 2016 (at the latest) to file his Section 2255
motion. Chery’s initial motion—filed on December 15, 2015—was timely.
Construed liberally, that motion alleged that his counsel was ineffective for the
following reasons: (1) failing to object to the lack of a statement of reasons for an
upward sentencing departure; (2) pressuring him to sign a plea agreement by
exaggerating the potential “sentencing exposure” and withholding the complete
terms of the plea agreement, all of which rendered his guilty plea involuntary and
unknowing; (3) failing to raise a sentencing-disparity argument; (4) failing to
object to certain conditions of supervised release; and (5) failing to address
unresolved issues in the presentence investigation report.
On April 19, 2016—after the deadline for filing a Section 2255 motion had
passed—Chery sought leave to file “supplemental” pleadings, which the district
court denied because the pleadings were “undecipherable” and exceeded the page
limitation provided by local rules. The court instead ordered Chery to file a single,
concise, amended motion setting forth all of his claims. The court informed Chery
that the amended motion would be the operative pleading, and that the court would
consider only the claims raised in the amended motion. The court “cautioned,
however, that any claims raised in [the] amended motion should comply with the
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relation back doctrine, as enunciated in Davenport v. United States, 217 F.3d 1341
(11th Cir. 2000).” The court warned that “[f]ailure to do so may result in dismissal
of the claim as time-barred.”
Chery filed his amended motion on June 3, 2016. Construed liberally, the
motion asserted (1) that his counsel rendered ineffective assistance by failing to
challenge the charges against him on the ground that his underlying conduct did
not violate the statute (what Chery characterized as an “actual innocence” claim),
and (2) that the government engaged in selective prosecution based upon his race.
On August 1, 2016, Chery filed a pleading styled as a “motion for clarification of
amended motion claims.” In that pleading, Chery stated that he did not seek to
“add or subtract any claims” and “simply [sought] to clarify and identify each
claim” in his amended motion. The pleading then went on to list out five new
ineffective-assistance-of-counsel claims (in addition to the two claims asserted in
the amended motion), all of which reiterated his argument that his underlying
conduct did not violate the statute and that his lawyer never told him that.
Because Chery’s amended motion was filed after the one-year limitation
period for filing a Section 2255 motion had expired, the claims in that motion are
timely only if they relate back to the claims asserted in his original, timely motion.
See Davenport, 217 F.3d at 1344. The district court did not err in concluding that
neither of the claims in Chery’s amended motion relate back to the claims in his
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original motion because they “arose from separate conduct and occurrences in both
time and type.” Id. at 1346. Chery argues he presented his claim that his plea
agreement was not entered knowingly or voluntarily because of counsel’s
ineffective assistance “in all three [of his] filings.” Br. of Appellant at 6. We
reject that argument. In his original motion, Chery asserted that his counsel
improperly pressured him to sign a plea agreement by overstating the
consequences of not doing so and failing to provide him with a full copy of the
agreement to review. In his amended and “clarification” motions, Chery asserted
that his counsel improperly failed to investigate his case and advise him that his
underlying conduct did not violate the statute under which he was charged.
Though Chery asserts that both courses of conduct rendered his plea involuntary,
they were nonetheless “separate conduct and occurrences in both time and type.”
Davenport, 217 F.3d at 1346.
AFFIRMED.
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