Azmat v. UNITED STATES OF AMERICA

Filing 62

ORDER AFFIRMING 56 Magistrate Judge's Order; and DENYING 59 Motion to Stay All Proceedings Related to 57 Report and Recommendations, 60 Motion to Stay All Proceedings Before the District Court as to Najam Azmat. Petitioner will have 14 days from the date of this order to file any objections. Signed by Judge William T. Moore, Jr on 07/18/2019. (evk)

IN THE UNITED STATES DISTRICT COURT FOR , s
THE SOUTHERN DISTRICT OF GEORGIA

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SAVANNAH DIVISION

NAJAM AZMAT,

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so.
Or GA.
Petitioner,
CASE NOS. CV417-086

V.

CR413-028

UNITED STATES OF AMERICA,

Respondent.

ORDER

Before the Court are Petitioner's Appeal of the Magistrate

Judge Decision (Doc. 457), Motion to Stay Proceedings Related to
the Report and Recommendation (Doc. 458), and Motion to Stay all

Proceedings

(Doc.

459).^

For

the

following

reasons,

the

Magistrate Judge's ruling is AFFIRMED and Petitioner's motions
to stay are DENIED. To the extent that Petitioner wishes to file
any objections to the report and recommendation. Petitioner will
have 14 days from the date of this order.
I.

APPEAL

On

June

Petitioner's

Petitioner's

7,

For

(1)

to

the

Magistrate

(Doc.

Motion

to

455.)

Amend

Intervention

consistency

citations

the

motions.

Request Court's

^

2019,

with

record

the
refer

to

Judge
These

(Doc.

Provide

Magistrate
to

denied

motions

411),

Grand

(2)

CR413-28, on this Court's docketing software.

of

included

Motion

to

Jury Transcript

Judge's

Petitioner's

several

order,

criminal

all

docket,

{Doc.

413),

(3)

Motion

for

Brady

Materials

(Doc.

424),

(4)

Motion for Grand Jury Transcript and Stay (Doc. 429), (5) Motion
to

Compel

441), (7)

(Doc.

437),

(6)

Motion

for

Summary

Motion to Admit Exhibits (Doc.

Judgment

447), (8)

(Doc.

Motion to

Expedite (Doc. 452), and (9) Motion for Default Judgment or in
the Alternative Motion to Compel (Doc. 453). On June 24, 2019,

Petitioner filed an appeal of the Magistrate

Judge's order to

this Court. (Doc. 457.)

In reviewing the Magistrate Judge's rulings on appeal for

non-dispositive matters, this Court must ^'modify or set aside
any part of the order that is clearly erroneous or is contrary
to law." Fed. R. Civ. P. 72. This Court has thoroughly reviewed

Petitioner's arguments on appeal and finds that the Magistrate
Judge

properly

considered
Court

and

does

not

rejected
find

many

that

of

any

those

part

same

arguments.

The

of

the

Magistrate

Judge's order was clearly erroneous or contrary to

law. Because this Court finds that the Magistrate Judge's order
is responsive to many of the arguments Petitioner now raises and
is not clearly erroneous or contrary to law, this Court will not
specifically address many of Petitioner's arguments on appeal.
The Court, however, will address Petitioner's arguments that the

Magistrate

Judge

improperly

denied

his

Motion

to

Amend

by

finding that his new claims were barred by the one-year statute

of

limitations

provided

in

the

Anti-Terrorism

and

Effective

Death Penalty Act, § 28 U.S.C. § 2255(f},("AEDPA") Petitioner's initial Motion to Set Aside Judgment under 28
U.S.C.

§

2255

(Doc.

401)

and

Amended

Motion

to

Set

Aside

Judgment (Doc. 403) were filed by his attorney Kent Williams.
After

a

breakdown

Petitioner

in

the

attorney-client

terminated

his

relationship

with

relationship,

Mr.

Williams

and

proceeded to file a motion to amend on October 10, 2017. (Doc.
411.) In his motion. Petitioner seeks to add additional claims

to

his

original

petitions

filed

on

his

behalf

by

his

former

attorney.(Id.)

On review, the Magistrate Judge found that Petitioner's new
claims

were

time-barred

because

they

were

not

filed

within

AEDPA's one-year statute of limitations. (Doc. 455 at 2-5.) The
Magistrate
untimely

timely

Judge

because

filed

(Id.)

concluded
these

claims

Accordingly,

claims

raised
the

that

in

Petitioner's

did

not

"relate

Petitioner's

Magistrate

claims

Judge

back"

initial

denied

were

to

the

petition.

Petitioner's

request to amend. (Id.)

In

his

appeal.

Petitioner

now

challenges

the

Magistrate

Judge's findings and argues that this Court should allow him to
amend

his

complaint

for

several

reasons.

(Doc.

457.)

First,

Petitioner contends that he should be permitted to freely amend
his petition and that there should be no requirement that his

claims relate back to his timely filed petition. (Id. at 7-8.)

Next, Petitioner asserts that this Court should use equitable

tolling to permit Petitioner to file his new claims despite any

applicable

statute

of

limitations.

(Id.

at

8-9.)

Finally,

Petitioner argues that the Court should allow his newly filed
claims because these claims amount to an actual innocence claim
that should

review,

not

be time-barred.

however,

the

Court

(Id.

cannot

at

10-11.) After

agree

with

careful

Petitioner's

arguments,

As

his first challenge

that his new

Magistrate
Procedure

to the

claims are untimely.

Judge

improperly

Magistrate

Judge's ruling

Petitioner asserts that the

applied

15(c) to find that his

Federal

claims

were

Rule

of

Civil

untimely because

they do not relate back to his timely filed petition. (Id. at 18.) Petitioner asserts that "the
contradictory and

^relate back' [rule] would be

counter intuitive" because

under

Rule

15(a)

leave to amend is given freely so that cases may be properly
decided

on

their

merits.

(Id.

at

7.)

Although

Petitioner

is

correct that the ability to amend under Federal Rule of Civil

Procedure 15(a) is generally given freely, "[w]hether a petition
can

be

amended

under

Rule

15(a)

however,

either

as of right,

with consent of the court, or with the consent of the parties,

does not answer the question of the date that those claims are
considered to have been made for limitations purposes." Pruitt v.

United States, 274

F.3d 1315, 1318

{11th Cir. 2001). Instead,

Federal Rule of Civil Procedure 15(c) provides the ^"mechanism by
which

an

considered

amendment
to

have

to

a

been

pleading

filed

as

under
of

Rule

the

date

15(a)
of

may

filing

be
the

original pleading" and this rule requires that the new claims
relate back to those claims that were timely filed. Id.

In

this

case,

Petitioner's

new

the

Magistrate

claims

do

not

Judge

properly

relate

back

to

found
the

that

claims

initially raised in Petitioner's timely filed petition. It is
well settled that under Federal Rule 15(c), ^'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." Davenport v. United States, 217 F.3d 1341, 1346
(11th Cir. 2000). In this case. Petitioner's new claims are not

factually related to the claims initially filed by his attorney.
Accordingly,
timely
Federal

Petitioner's

filing
Rule

and

are

claims

do

not
See,

time-barred.

of Civil Procedure

15(c)

relate
e.g.,

back
Id.

to

that

(applying

to determine that ""three

new claims in [the petitioner's] amended § 2255 motion do not
relate back to the date of his timely filed § 2255 motion" and
were barred under AEDPA).

Next,
his

Petitioner argues that this Court should find that

claims are

equitable

not time-barred

tolling

of

the

because this Court should

one-year

filing

deadline

in

allow

AEDPA.

(Doc.

457

pleaded

at

with

8-9.)

his

Petitioner

attorney

to

contends

file

that

additional

he

diligently

claims

in

his

initial habeas petition and the failure of his attorney to file
those

claims

warrants

equitable

tolling

of

the

statute

of

limitations. (Id.)

In order to establish that equitable tolling is warranted,

a petitioner must "show[]

Ml) that he has been pursuing his

rights diligently, and (2) that some extraordinary circumstance
stood

in

his

way'

and

prevented

timely

filing."

Holland

v.

Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d
130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125
S. Ct. 1807, 1818, 161 L. Ed. 2d
bears

the

burden

of

proving

669 (2005)). The petitioner

his

entitlement

to

equitable

tolling. San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir.
2011). However, equitable tolling is applied sparingly. Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000), and is available
^^only in truly extraordinary circumstances," Johnson v. United
States, 340 F.3d 1219, 1226 (11th

Circuit,

^Me]quitable

tolling

Cir. 2003). In the Eleventh

based

on

counsel's

failure

to

satisfy the AEDPA's statute of limitations is available only for
serious instances of attorney misconduct." Thomas v. Att'y Gen.,
795

F.3d

1286,

1291

(11th

quotation marks omitted).

Cir.

2015)

(internal

citations

and

In this case, Petitioner has failed to establish that he is
entitled to equitable tolling of the statute of limitations. As
the

record

petition

shows.

within

Petitioner's

attorney

properly

filed

a

the one-year period provided in AEDPA. (Doc.

401.) Although Petitioner quarrels with his attorney's decision
to

file

some

claims

at

the

exclusion

of

others,

this

disagreement does not rise to the extraordinary circumstances
which warrant equitable tolling of the statute of limitations.
See Maples v. Thomas, 565 U.S. 266, 280-81, 132 S. Ct. 912, 922,
181

L.

Ed.

prisoner's

2d

807

agent,

(2012)

and

principal bears the

("[BJecause

under

the

"well-settled"

risk of his

agent's

attorney

the

law,

agency

is

the

negligent conduct."

(citing Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546,
2566-67,

115

L.

Ed.

2d

640

(1991))). As

Petitioner's

agent.

Petitioner's attorney was permitted to make tactical decisions
based on the attorney's knowledge of the law. The decision by
Petitioner's

counsel

not

to

raise

certain

claims

does

not

warrant equitable tolling to permit Petitioner the opportunity
to amend his complaint.

Finally, Petitioner asserts that his claims cannot be timebarred

because

innocent.

actual

It

he

is

innocence

constitutional

is

well

asserting
established

may

claims

a

allow

. .

.

claim

that

that "a

credible

a

on

7

he

prisoner

the

merits

to

is

actually

showing

pursue

notwithstanding

of

his
the

existence of a procedural bar to relief. McQuiggin v. Perkins,
569 U.S. 383, 392, 133 S. Ct. 1924, 1931, 185 L. Ed. 2d 1019
(2013). However, "actual innocence gateway pleas are rare: "[A]

petitioner does

not meet the

threshold

requirement

unless

he

persuades the district court that, in light of the new evidence,
no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.' " Id. at 386, 133 S. Ct. at 1928

(quoting Schlup v. DelO/ 513 U.S. 298, 329, 115 S. Ct. 851, 868,
130 L. Ed. 2d 808 (1995)).

Despite Petitioner's argument. Petitioner has not provided

any sufficient basis to support his actual innocence claim. As a
starting point. Petitioner has never raised an actual innocence
claim in his properly filed petition or in his later untimely

petition filed on his own behalf. (See Doc. 401; Doc. 403; Doc.
411.) Instead, Petitioner asserts a wide array of errors made by

his

attorney

and

untruthful or

Although

evidence

perjured. (See

Petitioner

Petitioner

that

must

do

argues

evidence

raised

than "counterbalance

the

sustained [his] conviction." Rozzelle v. Sec'y,
Corr.,

672

F.3d

1000,

is

either

Doc. 401; Doc. 403; Doc. 411.)

disputes

more

Petitioner

1017-18

(11th

Cir.

at

trial,

evidence

that

Fla.

Dep't of

2012).

Instead,

Petitioner "must present ^new reliable evidence' such that it is
more

likely

than

not

that

'no

reasonable

juror

would

have

convicted

(quoting

him in

of the

new

evidence.' " Id.

at

1017

Schlup, 513 U.S. at 324, 327, 115 S. Ct. at 865, 867).

Here,
which

light

Petitioner

shows

that

he

has not cited any new
is

actually

innocent

reliable evidence
of

his

underlying

crime. Arguing that witness testimony was perjured or that the
Government

acted

improperly

is

insufficient.

Accordingly,

Petitioner will not be permitted to raise any new claims in an

amended

complaint

based

on

an

actual

innocence

exception

to

AEDPA's one-year statute of limitations.

For the foregoing reasons, the Court affirms the Magistrate
Judge's conclusion that Petitioner is not entitled to file an
amended

complaint

untethered

from

that

his

raises

properly

untimely

filed

claims

petition.

factually

Petitioner

has

simply shown no basis to warrant the consideration of his new

untimely claims. Accordingly, the Magistrate Judge's opinion is
AFFIRMED in its entirety.^
II.

MOTION

TO

STAY

PROCEEDINGS

RELATED

TO

REPORT

AND

RECOMMENDATION

In his appeal, Petitioner requests that the Court stay all
proceedings with respect to the report and recommendation due to
Petitioner's pending appeal. (Doc. 458.) At this time, the Court

2 Again, the Court affirms the Magistrate Judge's findings and
conclusions
with respect to the other issues raised in
Petitioner's appeal. This Court finds that the Magistrate
Judge's findings and conclusions were neither clearly erroneous
nor contrary to law.

has

thoroughly

Magistrate
entitled to
this

reviewed

Judge's

Petitioner's

ruling.

any stay and

Court

will

As

his

consider

a

appeal

result,

and

affirmed

Petitioner

request is DENIED.

the

merits

of

is

the
not

Accordingly,

the

report

and

recommendation.

It should be noted that no stay was granted in this case
and that the deadline for Petitioner to file objections to the

Magistrate Judge's report and recommendation has since expired.
(See Doc. 456.) In light of Petitioner's pro se status, however,

this Court will provide Petitioner with 14 days from the date of
this order to respond to the report and recommendation.
III. MOTION TO STAY ALL PROCEEDINGS BEFORE DISTRICT COURT

Finally,

Petitioner

requests

that

this

Court

stay

all

proceedings in this case to allow Petitioner the opportunity to
request permission from the Eleventh Circuit to file a second or
successive

habeas

petition.

(Doc.

459.)

However,

Petitioner

cannot file a second or successive habeas petition

while this

Court is still in the process of reviewing his initial petition.
As a result. Petitioner's request is DENIED.
IV. CONCLUSION

For the foregoing reasons, the

Magistrate

Judge's ruling

(Doc. 455) is AFFIRMED and Petitioner's motions to stay (Doc.
458; Doc. 459) are DENIED. To the extent that Petitioner wishes

10

to file any objections to the report and recommendation (Doc
456), Petitioner will have 14 days from the date of this order.
SO ORDERED this

/

day of July 2019.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

11