IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2009
No. 07-40517 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAUL GONZALEZ JR,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:
This appeal arises from the district court’s decision to deny Petitioner Raul
Gonzalez Jr.’s 28 U.S.C. § 2255 motion collaterally attacking his sentence. We
granted a Certificate of Appealability (COA) on two issues: (1) whether we
should take cognizance of an issue not raised in the parties’ original briefs: that
the court below had abused its discretion by denying petitioner leave to amend
his § 2255 motion; and (2) if we do take cognizance of this issue, whether it has
merit. Having reviewed the parties’ briefs and heard oral argument in this
matter, we affirm.
No. 07-40517
I. FACTUAL BACKGROUND
In May of 2004, Gonzalez entered the United States Border Patrol
Checkpoint near Hebronville, Texas driving a tractor trailer. A border patrol
agent questioned Gonzalez about his citizenship and noticed that Gonzalez was
sweating and avoiding eye contact. When asked about the contents of the
trailer, Gonzalez stated that it was empty. After drug dogs alerted to the trailer,
the authorities discovered 268 bundles of marijuana weighing a total of 1,476.44
kilograms. DEA agents subsequently discovered 23.58 kilograms of cocaine
concealed among the bundles of marijuana.
II. PROCEDURAL HISTORY
A jury convicted Gonzalez of possession with intent to distribute
marijuana and cocaine. At sentencing, counsel for Gonzalez argued that the
United States Sentencing Guidelines were unconstitutional in light of the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004). The
district court concluded that it was bound to apply the Guidelines as mandatory
under United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004), vacated, 543 U.S.
1101 (2005), remanded to 410 F.3d 282 (5th Cir. 2005). Gonzalez’s counsel did
not file a notice of appeal; therefore his conviction became final when the
deadline for filing an appeal expired on February 28, 2005. See United States v.
Plascencia, 537 F.3d 385, 388 (5th Cir. 2008). After Gonzalez was convicted, the
Supreme Court held that the mandatory United States Sentencing Guidelines
were unconstitutional. United States v. Booker, 543 U.S. 220, 263-65 (2005).
In March of 2005, Gonzalez filed a pro se § 2255 motion and supporting
brief in which he asserted that “[a] recent Supreme Court decision determined
that the Federal Sentencing Guidelines were unconstitutional.” In this motion,
Gonzalez asserted that he received ineffective assistance of counsel. Gonzalez
subsequently filed an additional § 2255 motion in which he argued other issues
that are not relevant here. In September of 2005, at Gonzalez’s request, the
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No. 07-40517
district court dismissed the entire proceeding without prejudice.1 In November
of 2005, Gonzalez filed a motion requesting appointment of counsel in order to
pursue a claim of ineffective assistance of counsel due to his attorney’s failure
to file a notice of appeal. On December 7, 2005, Gonzalez timely filed the instant
§ 2255 motion. In his supporting brief, he again claimed that he had received
ineffective assistance of counsel, but did not mention his attorney’s alleged
failure to file a notice of appeal. Rather, he claimed that his attorney had
committed several errors during the sentencing phase and had advised him to
proceed to trial in the face of overwhelming evidence.
In July of 2006, more than one year after his conviction became final,
Gonzalez filed a motion for leave to amend his § 2255 pleading to include a claim
of ineffective assistance based on his attorney’s failure to file an appeal. The
district court refused to allow the amendment, reasoning that the failure to file
an appeal “was not a newly discovered [sic] issue” that could not have been
raised in the initial motion. At the time the court issued its order, the
government had not yet filed its response to the petition. The district court
ultimately denied the § 2255 motion and denied a COA. We granted a COA on
the question of whether the district court abused its discretion 2 when it refused
to allow Gonzalez to amend his § 2255 motion. United States v. Gonzalez, No.
07-40517 (5th Cir. July 15, 2008) (unpublished COA order).
1
In its order granting voluntary dismissal, the district court cautioned Gonzalez that
if he intended to refile his motion, “it must be done no later than one year after his judgment
became final.” The court further warned that “[f]ailure to file within the one year limitation
period [would] lead to a dismissal with prejudice.” Gonzalez v. United States, No. 5:05-CV-236
(S.D. Tex. Sept. 16, 2005).
2
We review a district court’s denial of leave to amend a § 2255 motion for abuse of
discretion. United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002).
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No. 07-40517
III. DISCUSSION
We first address the question of whether we should take cognizance of the
issue that was not raised in the parties’ original briefs: that the district court
abused its discretion when it denied Gonzalez leave to amend his § 2255 motion.
The government appears to have conceded this point by proceeding immediately
to argument on the merits. We have previously exercised our discretion to
consider unraised issues in COA petitions in light of similar concessions made
by the government. See, e.g., United States v. Merrifield, No. 07-41063, 2009 WL
2029917 (5th Cir. July 10, 2009) (unpublished). Of course, we are mindful of the
Supreme Court’s admonition that courts should “normally decide only questions
presented by the parties.” Greenlaw v. United States, 128 S. Ct. 2559, 2564
(2008) (internal quotation marks and citation omitted). The Supreme Court has
recognized, however, that appellate courts may depart from the principle of
party presentation in criminal cases to protect the rights of pro se litigants. Id.
(citing Castro v. United States, 540 U.S. 375, 381-383 (2003)). We find that this
case warrants such a departure.
In order to decide whether the district court abused its discretion by
refusing to allow Gonzalez leave to amend his § 2255 motion, we must first
determine whether Gonzalez filed his motion to amend within the one-year
limitations period imposed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). 28 U.S.C. § 2255(f)(1). We conclude that he has not.
AEDPA requires a prisoner in federal custody to bring his motion for relief no
later than one year after his conviction becomes final. Id. As the government
emphasized in its brief and at oral argument, Gonzalez’s conviction became final
on February 28, 2005. Gonzalez did not seek leave to amend his § 2255 motion
until July 25, 2006, well after the one-year limitations period had expired. In
order to demonstrate that the district court abused its discretion, Gonzalez must
overcome the time-bar on the claim raised in his proposed amendment.
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No. 07-40517
Gonzalez first argues that his new claim is not time-barred because it
relates back to his original § 2255 pleading under Federal Rule of Civil
Procedure 15(c)(1). It is well settled that Rule 15 applies to federal habeas
proceedings. See United States v. Saenz, 282 F.3d 354, 356 (5th Cir. 2002). “An
amendment to a pleading relates back to the date of the original pleading when
. . . the amendment asserts a claim or defense that arose out 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).
Gonzalez urges us to hold that his motion to amend automatically relates
back to his original pleading because the underlying theory of the claims is the
same: ineffective assistance of counsel. In addressing this question, we are
guided by the Supreme Court’s decision in Mayle v. Felix, in which the Court
held that claims raised in an amendment to a habeas petition did not
automatically relate back merely because they arose out of the same trial and
conviction. 545 U.S. 644, 650 (2005). The Court explained that amendments do
not relate back if they assert “a new ground for relief supported by facts that
differ in both time and type from those the original pleading set forth.” Id. We
have not yet determined how Felix’s holding applies to habeas amendments
seeking to add new claims of ineffective assistance of counsel to preexisting
claims. Cf. United States v. Lewis, 182 F. App’x 344, 345 (5th Cir. 2006)
(unpublished) (declining to reach the question of whether the petitioner’s
amendment satisfied the relation-back test).
Two of our sister circuits, however, have held that, under Felix, one claim
of ineffective assistance does not automatically relate back to another simply
because the two claims both rest on a violation of the Sixth Amendment. See,
e.g., United States v. Hernandez, 436 F.3d 851, 858 (8th Cir. 2006); United States
v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005). In Ciampi, the First Circuit applied
Felix’s “stringent standard” and held that a claim of ineffective assistance
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No. 07-40517
arising out of the attorney’s alleged failure to discuss the petitioner’s appellate
rights with him did not relate back to the original claim dealing with the
attorney’s advice to accept a plea bargain. 419 F.3d at 24. The court determined
that a petitioner “does not satisfy the Rule 15 ‘relation back’ standard merely by
raising some type of ineffective assistance in the original petition, and then
amending the petition to assert another ineffective assistance claim based upon
an entirely distinct type of attorney misfeasance.” Id. (citations omitted). The
Eighth Circuit echoed this reasoning, finding that claims relating to the
attorney’s failure to cross examine two witnesses and those relating to the
failure to object to evidence were “not similar enough to satisfy the ‘time and
type test’” espoused in Felix. Hernandez, 436 F.3d at 858.
Several pre-Felix decisions also indicate that ineffective-assistance claims
should not automatically satisfy the test for relation back simply because they
rest on the same constitutional violation. The Eleventh Circuit held that a
petitioner’s claim that his counsel failed to inform him of a possible plea
agreement did not relate back to the original claim that his attorney had failed
to challenge the chemical composition of the crack cocaine the petitioner was
charged with possessing. Davenport v. United States, 217 F.3d 1341, 1346 (11th
Cir. 2000). Prior to its decision in Hernandez, the Eighth Circuit had rejected
a petitioner’s claim seeking to relate claims arising out of an alleged failure to
appeal back to his original claims regarding his counsel’s failure to seek a
downward departure at the sentencing stage. United States v. Craycraft, 167
F.3d 451, 457 (8th Cir. 1999). The Third Circuit reached a similar result in
United States v. Duffus, 174 F.3d 333, 337 (3d Cir. 1999) (holding that the
petitioner’s amended claim of ineffective assistance due to his attorney’s failure
to move to suppress evidence did not relate back to his original claim that his
attorney failed to raise an issue on appeal). These two decisions, along with
Ciampi, are particularly relevant to the instant case because Gonzalez seeks to
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No. 07-40517
relate a claim dealing with his appellate rights to prior claims arising from his
attorney’s ineffective assistance during pretrial proceedings and at the
sentencing stage.
We agree with the approach adopted by our sister circuits. New claims of
ineffective assistance of counsel do not automatically relate back to prior
ineffective assistance claims simply because they violate the same constitutional
provision. Rather, we must look to whether Gonzalez’s new claim asserts “a new
ground for relief supported by facts that differ in both time and type from those
the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). If it
does, then his proposed amendment does not relate back to his original pleading
and is time-barred.
We conclude that Gonzalez’s proposed amendment does raise a new
ground for relief. Gonzalez’s original § 2255 motion alleged that his attorney
had committed errors during the sentencing phase that resulted in Gonzalez’s
disqualification for downward departures from his sentencing range under the
Guidelines. The pleading also alleged that Gonzalez’s attorney had coerced him
into proceeding to trial in the face of overwhelming evidence. The proposed
amendment, however, asserts a claim of ineffective assistance of counsel based
on the attorney’s failure to file an appeal. “Failing to file an appeal is a separate
occurrence in both time and type,” from conduct that occurs at the sentencing
phase and before trial. Craycraft, 167 F.3d at 457. Gonzalez’s original claims
involve “entirely distinct type[s] of attorney misfeasance” from the claim
asserted in his proposed amendment. United States v. Ciampi, 419 F.3d 20, 24
(1st Cir. 2005). Because the proposed amendment raises a new claim and
therefore does not relate back to the original § 2255 motion, it is time-barred
under AEDPA.3
3
We note that Gonzalez filed his motion to appoint counsel to pursue his claim of
ineffective assistance based on his attorney’s failure to file a notice of appeal in November of
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No. 07-40517
Gonzalez also argues that the district court abused its discretion by
denying leave to amend his claim when leave of the court was not required.
Under the former version of Rule 15(a)(1)(A),4 which was in effect when Gonzalez
filed his motion to amend, “[a] party may amend its pleading once as a matter
of course before being served with a responsive pleading.” Fed. R. Civ. P.
15(a)(1)(A) (amended 2009). Here, the record indicates that, at the time
Gonzalez filed his motion, the government had yet to file its response. The
district court appears to have treated this motion under Rule 15(a)(2), which
governs motions to amend after a responsive pleading has been filed.
We agree with Gonzalez that the district court erred on this point. Our
precedent indicates, however, that a district court may deny motions to amend,
even when such amendment would be “as a matter of course,” when the
amendment would be futile. Johnson v. Dunbar, No. 92-9536, 1994 WL 35605
at *4 (5th Cir. Jan. 27, 1994),5 see also Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314, 321 (5th Cir. 1991) (citations omitted). Although the
district court did not address futility in its order, we may affirm for any reason
supported by the record, even if not relied on by the district court. LLEH, Inc.,
v. Wichita County, Tex., 289 F.3d 358, 364 (5th Cir. 2002) (citations omitted).
2005 and filed a letter reminding the court of the motion in February of 2006. An argument
could be made that these documents were sufficient to put the court on notice of this claim
within AEDPA’s one-year period. Gonzalez has not briefed this issue on appeal, however, and
has therefore waived it. United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
Although we liberally construe the briefs of pro se litigants to avoid waiver, Gonzalez is
currently represented by counsel. See Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir.
2008) (“Though pro se litigants’ briefs are liberally construed so as to avoid waiver of issues,
the indulgence for parties represented by counsel is necessarily narrower.”) (citation omitted).
4
On December 1, 2009, Rule 15(a)(1)(A) was amended. In reviewing the district court’s
decision for abuse of discretion, we apply the Rule as it existed at the time the district court
denied Gonzalez’s motion to amend. See In re OCA, Inc., 551 F.3d 359, 369 n. 22 (5th Cir.
2008).
5
Unpublished opinions issued before January 1, 1996 are precedent in this Circuit. See
5th Cir. R. 47.5.3.
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No. 07-40517
Having determined that Gonzalez’s amendment does not relate back to his
original claims and is therefore time-barred, we conclude that his amendment
would have been futile, thus rendering the district court’s procedural error
inconsequential.
For the foregoing reasons, the decision of the district court is hereby
AFFIRMED.
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