F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 14 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-2110
GILBERT ESPINOZA-SAENZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-99-355-SC)
Submitted on the brief:
Gilbert Espinoza-Saenz, pro se.
Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.
BALDOCK , Circuit Judge.
Pro se appellant Gilbert Espinoza-Saenz seeks a certificate of appealability
to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his
criminal sentence and the court’s denial of his request to amend his motion out of
time. In order for this court to grant a certificate of appealability, defendant must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). In addressing the requirements of obtaining a certificate of
appealability under § 2253(c), the Supreme Court recently stated that a defendant
must show a substantial denial of a constitutional right by demonstrating
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v.
McDaniel , 120 S. Ct. 1595, 1603-04 (2000) ( quoting Barefoot v. Estelle , 463 U.S.
880, 893 and n.4 (1983)) (further quotation omitted).
In considering defendant’s appeal, we address whether Fed. R. Civ. P. 15(c)
allows his amended motion to relate back to the date of his original filing.
Because this presents a question of first impression in this circuit, we conclude
that the issue merits further judicial consideration, and we grant a certificate of
appealability. We have jurisdiction over this appeal pursuant to 28 U.S.C.
§ 2253(a) and 28 U.S.C. § 1291, and we affirm. 1
1
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
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I.
Defendant pled guilty to one count of possession with intent to distribute
marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), 841(b)(1)(C), and
18 U.S.C. § 2, and one count of conspiracy to commit the same in violation of
21 U.S.C. § 846. The sentencing court found defendant to be a career offender
and sentenced him to 151 months on the conspiracy count and sixty months on the
possession count, to be served concurrently.
Defendant timely filed a pro se notice of appeal raising the issue of the
sentencing court’s denial of a downward departure based on his ill health.
Defendant’s counsel also filed a notice of appeal, a brief pursuant to Anders v.
California , 386 U.S. 738 (1967), and a motion to withdraw. In his response,
defendant asserted several ineffective assistance of trial counsel claims. This
court granted counsel’s request to withdraw, dismissed the appeal for lack of
jurisdiction over the sentencing court’s refusal to depart downward, and expressly
advised defendant to bring his ineffective assistance of counsel claims in
a § 2255 motion.
Defendant timely filed a pro se § 2255 motion, asserting that the sentencing
court erred in sentencing him on a count on which he had been found not guilty,
and that the pre-sentence report inappropriately used a 1995 escape charge to
enhance his criminal history category. After the expiration of his one-year
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limitations period under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), and while his first motion was still pending, defendant filed
a supplemental motion asserting a number of ineffective assistance of counsel
claims. 2
The magistrate judge found the claims in defendant’s first motion to be
without merit and recommended that the motion be denied. 3
She found his
supplemental motion to be barred by the AEDPA’s one-year statute of limitations
and recommended transferring it to this court as a second or successive petition. 4
See § 2255; Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997). The
district court agreed and adopted the recommendations of the magistrate judge
over appellant’s objections. On appeal, appellant contends that the district court
erred in treating his supplemental motion as a successive petition instead of as an
2
On April 24, 1996, the AEDPA became effective, including the provision
subjecting § 2255 to a one-year statute of limitations. Defendant’s one-year
limitations period ended on February 2, 1999. He filed his first § 2255 motion on
January 11, 1999, well within the time allowed. His second supplemental
pleading, however, was filed on March 29, 1999, outside the one-year statute of
limitations.
3
Defendant does not appeal the court’s decision on the claims of sentencing
error brought in his original motion. We, therefore, consider those issues waived.
State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
4
Upon receipt of the transferred motion, this court notified defendant that he
had thirty days in which to file a proper motion for permission to file a second or
successive § 2255 motion and that his failure to do so would result in the denial
of permission. See § 2244(b)(3)(D). When defendant did not comply, the matter
was dismissed. See id.
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amendment which related back to his timely motion. For the reasons that follow,
we conclude that, under the circumstances here, Rule 15(c) does not save
defendant’s untimely claims.
II.
Subject to certain restrictions, Fed. R. Civ. P. 15 allows a party to amend or
supplement a pleading. Rule 15(c)(2) provides that “[a]n amendment of a
pleading relates back to the date of the original pleading when . . . the claim or
defense asserted in the amended pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in the original pleading.” 5
Ordinarily, “[w]e review a trial court’s decision on whether to allow amendment
of pleadings for abuse of discretion.” Gillette v. Tansy , 17 F.3d 308, 312
(10th Cir. 1994). Under the circumstances here, however, we are reviewing the
district court’s legal conclusion that it did not have the authority to allow an
untimely amendment. Our review requires a decision on an issue of law and thus,
is considered by this court de novo. See e.g. Dang v. UNUM Life Ins. Co. ,
175 F.3d 1186, 1189 (10th Cir. 1999); United States v. Thomas , 221 F.3d 430,
433-34 (3d Cir. 2000).
5
Rule 15(c) sets forth two additional circumstances under which an
amendment to a pleading relates back to the filing of the original pleading.
Neither is applicable here.
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This court has not previously looked at Rule 15(c) as it relates to a § 2255
motion. A number of other circuits, however, have recently decided the issue.
In Thomas , the Third Circuit considered the appeal of a defendant from the denial
of his timely § 2255 motion in which he stated twenty-four grounds for relief.
See 221 F.3d at 431-33. He subsequently filed a motion for permission to file
a memorandum of law in support of his claims. The district court denied him
permission to file the memorandum because it would be filed after the expiration
of § 2255’s one-year limitation period. It then denied his original motion because
he failed to state a cause of action. On appeal, the Third Circuit held that, “under
Fed. R. Civ. P. 15(c), a District Court may, in its discretion, permit an amendment
which clarifies or amplifies a claim or theory in a timely filed § 2255 petition
after the AEDPA’s one-year period of limitations has expired.” Thomas , 221 F.3d
at 438. In remanding to allow the district court to reconsider the defendant’s
request to amend, the appellate court concluded that Rule 15(c) applies to allow
amendment to § 2255 motions “as long as the petition itself was timely filed and
the petitioner does not seek to add an entirely new claim or new theory of relief.”
Id. at 436; see also United States v. Duffus , 174 F.3d 333, 337 (3d Cir.) (stating in
dictum that untimely amendment allowed “to clarify a claim initially made”), cert.
denied , 120 S. Ct. 163 (1999).
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In Davenport v. United States , 217 F.3d 1341, 1342-43 (11th Cir. 2000),
the defendant timely filed a § 2255 motion raising four claims: three concerning
alleged errors in his trial and sentencing and a fourth alleging his counsel was
ineffective for failing to raise the first three. After the government’s response,
the defendant sought to dismiss his motion without prejudice or, in the
alternative, to amend. The court denied the motion to dismiss, but granted the
defendant permission to amend. In his amendment, the defendant raised three
more ineffective assistance of counsel claims based on different conduct.
In determining that the new claims raised in the defendant’s amended motion
were untimely and could not be saved by the relation back provision of
Rule 15(c)(2), the Davenport court found the 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.” 217 F.3d at 1346.
Similarly, the defendant in United States v. Pittman , 209 F.3d 314, 316
(4th Cir. 2000), sought to amend his timely-filed § 2255 motion by asserting
claims unrelated to any claim in his original motion. In his first motion,
defendant alleged that the sentencing court lacked jurisdiction to impose an
enhanced sentence based on prior convictions, the enhancement was improper,
and the government had not proved, by a preponderance of the evidence, that the
drugs at issue were crack cocaine. In his amended motion, he asserted that
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counsel’s failure to appeal constituted ineffective assistance, and the sentencing
court improperly enhanced his sentence for obstruction of justice. In upholding
the district court’s denial of the defendant’s request to amend, the Fourth Circuit
held that the “new claims do not relate back to his original claims because they
arise from separate occurrences of both time and type.” Id. at 318 (quotation
omitted). Rejecting the defendant’s argument that his new claims should relate
back because the “‘occurrence’ for purposes of Rule 15(c) should be the entire
trial and sentencing proceeding,” the court reasoned that to allow amendment
simply because the amended claims relate to the same trial and sentencing
proceedings as those in the original motion “would undermine the limitations
period set by Congress in the AEDPA.” Id.
In United States v. Craycraft , 167 F.3d 451 (8th Cir. 1999), the defendant
raised ineffective assistance of counsel claims in his original timely filed § 2255
motion, alleging that counsel failed to pursue a downward departure for
substantial assistance, and failed to challenge the government’s classification of
the methamphetamine involved in the case. In his untimely amended motion, the
defendant raised an additional ineffective assistance claim asserting that his
counsel failed to appeal his conviction. The Eighth Circuit held the amendment
to be time barred because it alleged errors of counsel completely separate in “time
and type” from those alleged in the original motion. Id. at 457.
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We find the reasoning in these cases to be persuasive, and therefore we
join the other circuits who have decided this issue in holding that pursuant to
Rule 15(c), an untimely amendment to a § 2255 motion
which, by way of additional facts, clarifies or amplifies a claim or
theory in the [original motion] may, in the District Court’s discretion,
relate back to the date of [the original motion] if and only if the
[original motion] was timely filed and the proposed amendment does
not seek to add a new claim or to insert a new theory into the case.
Thomas , 231 F.3d at 431.
Here, defendant’s supplemental motion, filed almost two months after the
AEDPA deadline, raised completely new claims of ineffective assistance of
counsel. Contrary to defendant’s belief, his supplemental motion was not
clarifying, but instead sought to assert claims totally separate and distinct,
“in both time and type” from those raised in his original motion. Craycraft ,
167 F.3d at 457. We agree that, because a majority of amendments to § 2255
motions raise issues which relate to a defendant’s trial and sentencing, to allow
amendment under that broad umbrella would be tantamount to judicial rescission
of AEDPA’s statute of limitations period. See Pittman , 209 F.3d at 318 (stating
that to allow untimely amendments bringing new claims arising out of the same
trial proceeding as the original claims, “would undermine the limitations period
set by Congress in the AEDPA”); Duffus , 174 F.3d at 337 (holding that granting
motion to amend “would have frustrated the intent of Congress that claims under
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28 U.S.C. § 2255 be advanced within one year after a judgment of conviction
becomes final”). Therefore, under the circumstances here, the relation back
provision of Rule 15(c) cannot be applied to save defendant’s ineffective
assistance of counsel claims, and the district court did not abuse its discretion in
denying defendant permission to amend.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
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