Mosby v. United States of America
ORDER denying 11 Motion to Amend Document. Signed by Magistrate Judge G. R. Smith on 6/14/17. (trb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
LATWON TYRONE MOSBY,
UNITED STATES OF AMERICA,
Scott L. Poff, Clerk
United States District Court
By tblanchard at 9:42 am, Jun 15, 2017
Guilty-plea convicted as a felon-in-possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Latwon Mosby seeks
28 U.S.C. § 2255 relief. Doc. 68 & 69 (arguing ineffective assistance of
counsel and raising a claim that his sentence was improperly enhanced
per Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015). 1 The
undersigned recommended his motion be dismissed on the merits, and
that a Certificate of Appealability be denied. Doc. 72. In lieu of filing
Fed. R Civ. P. 72(b)(2) Objections to the Report and Recommendation
(R&R), Mosby “concur[red] with the Magistrate” that the motion was
meritless, “withdr[ew]” his motion, and informed the Court that he
The Court is citing to the criminal docket in CR414-307 unless otherwise noted,
and all page numbers are those imprinted by the Court’s docketing software.
would like to amend it to give him his “last bite of the habeas writ
right.” Doc. 76.
A § 2255 motion must be filed within a year of “the date on which
the judgment of the conviction becomes final.” 28 U.S.C. § 2255(f)(1).
Here, the Eleventh Circuit confirmed Mosby’s sentence on November 3,
2015 (see United States v. Mosby, 630 F. App’x 961, 962-63 (11th Cir.
2015), so his conviction became “final” 90 days later on February 1,
2016. His § 2255 motion therefore had to be filed by no later than
February 1, 2017. His filed his original motion on November 14, 2016.
Doc. 68. His motion to amend, adding entirely new claims, was not
signature-filed until May 10, 2017. Doc. 77.
An otherwise untimely amendment may ‘relate back’ to a timelyfiled claim pursuant to Fed. R. Civ. P. 15(c). See Mayle v. Felix, 545
U.S. 644, 664 (2005); Farris v. United States, 333 F.3d 1211, 1215 (11th
Cir. 2003); see also United States v. Pittman, 209 F.3d 314, 317 (4th
Cir. 2000) (although the Rules Governing Section 2255 does not address
the procedure for amending motions, courts have typically applied
Federal Rule of Civil Procedure 15).
A movant who “has had ample opportunity to present his case to
the Court . . . cannot simply raise new claims as they occur to him.”
United States v. Burbage, 280 F. App’x 777, 782 (10th Cir. 2008);
cf. McCleskey v. Zant, 499 U.S. 467, 485 (1991) (“Nothing in the
traditions of habeas corpus requires the federal courts to tolerate
needless, piecemeal litigation, or to entertain collateral proceedings
whose only purpose is to vex, harass, or delay.”) (cite omitted). This is
particularly true where a party has been put on notice that his claims are
meritless and then attempts to introduce new theories of obtaining relief.
See Andrx Pharms., Inc. v. Elan Corp., PLC, 421 F.3d 1227, 1236-37
(11th Cir. 2005).
In his motion to amend, Mosby newly contends that (1) the
Government breached the plea agreement; (2) the Sentencing
Guidelines are illegal; and (3) his counsel was deficient for allowing his
constitutional rights to be violated. Doc. 77. These, of course, do not
arise from the same underlying facts as the original, timely filed § 2255
motion -- his original claims turn on the application of Johnson, 135
S.Ct. 2551, to his Sentencing Guidelines-based conviction, plus counsel’s
ineffectiveness in preparing and arguing a motion to suppress.
Compare docs. 68 & 69 (motion filed November 2016) with doc. 77
(motion filed May 2017).
Mosby is merely attempting to raise new
theories of relief after receiving notice (and conceding) that his current
claims are meritless.
See Andrx Pharms., Inc., 421 F.3d at 1236-37.
Thus, they cannot latch onto the original motion’s timeliness to sneak
by the § 2255(f) one-year time bar. Davenport v. United States, 217
F.3d 1341, 1344 (11th Cir. 2000) (“the untimely claim must have more
in common with the timely filed claim than the mere fact that they
arose out of the same trial and sentencing proceedings.”).
Nor can Mosby find relief under any other exception to the oneyear time bar to present his untimely § 2555 claims. See 28 U.S.C.
§ 2255(f)(2)-(4) (providing exceptions for cases where the government
impeded his ability to file his amendment, new facts supporting the
claims have discovered, or the amendment is based upon a newly
recognized right made retroactively applicable by the Supreme Court).
Movant’s motion to amend his § 2255 motion (doc. 77) is therefore
Even if timely, the claims are nonetheless meritless. His allegation that the
Government breached the plea agreement by considering all of his past conduct in
determining his Guideline range is belied by the agreement itself, which provided
that the probation officer would rely on “all of [Mosby]’s relevant conduct, pursuant
to U.S.S.G. § 1B1.2, not just the facts underlying the particular Count to which [he]
SO ORDERED, this 14th day of June, 2017.
[was] pleading guilty.” Doc. 46 at 2-3. Nor are the Guidelines themselves somehow
rendered “illegal” because the Court permissibly examined defendant’s relevant prior
conduct, including his “unindicted” and “uncharged criminal conduct,” in calculating
his sentence. Doc. 77; see United States v. Nyhuis, 8 F.3d 731, 744 (11th Cir.1993)
(when deciding whether to apply a sentencing enhancement, the district court may
consider evidence of unindicted conduct, conduct for which the defendant has been
acquitted, and conduct that goes beyond an averment of the indictment).
Finally, counsel was not ineffective for “allowing” Mosby’s sentence to be
increased above the “statutory maximum” -- he was sentenced to 95 months’
imprisonment, well below the 120-month maximum. Doc. 47. Nor did counsel fail to
protect his constitutional rights -- his Guideline range was permissibly calculated.
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (counsel is not deficient
for failing to make a meritless argument).
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