Spencer v. UNITED STATES OF AMERICA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS 4 of the Magistrate Judge as the opinion of the Court. Petitioner's motion to vacate, set aside or correct sentence 1 and 3 Motion to Amend are denied. The Clerk of Court is directed to close this case. Signed by Judge William T. Moore, Jr on 6/7/2021. (ca)

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

LANCE SPENCER,

Petitioner,
CASE NOS.CV419-184

V.

CR418-171

UNITED STATES OF AMERICA,

Respondent.

ORDER

Before the Court is the Magistrate Judge's April 6, 2021,

Report and Recommendation {Doc. 4)^, to which Petitioner has filed
an objection (Doc. 8). After a careful de novo review of the
record, the report and recommendation is ADOPTED as the Court's
opinion in this case.

In October 2018, Petitioner pleaded guilty to one count of
possession of a firearm by a prohibited person. (CR418-171, Doc.

27.) On July 29, 2019, Petitioner filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside or correct his sentence asserting that,

in the wake of the Supreme Court's ruling in Rehaif v. United
States, -- U.S.

139 S. Ct. 2191, 204 L. Ed. 2d 2191 (2019),

the Government failed to establish the scienter needed to prove

the charged offense. (Doc. 1 at 5.) Almost a year later, on June

^ Unless otherwise stated, all citations are to Petitioner's civil
docket on this Court's electronic filing system, CV419-184.

23, 2020, Petitioner filed a motion to amend his motion to vacate

to

include

counsel,

an

additional

alleging

that

ground

his

of

counsel

ineffective
failed

to

assistance

investigate

of
and

contest the lack of probable cause for the traffic stop that led

to his arrest. {Doc. 3.) In the report and recommendation, the
Magistrate Judge recommended that the motion to amend and the
motion to vacate be denied. (Doc. 4 at 3-5.)

Petitioner

has

filed

an

objection

to

the

report

and

recommendation. (Doc. 8.) In his objection. Petitioner does not

contest the

Magistrate

Judge's determination that

his initial

ground for relief based on Rehaif is precluded by his guilty plea.
(Doc. 4 at 4-5.) Rather, Petitioner focuses only on the Magistrate

Judge's determination that the motion to amend is untimely. (Doc.
8.)

Petitioner asserts that

his amendment should

be

deemed to

relate back to the initial motion, as both claims are derived from

a ^^common core of operative facts." (Id. at 1-3.)
Motions to vacate, set aside, or correct a sentence under 28

U.S.C. § 2255 are subject to a one-year statute of limitations.
28

U.S.C. § 2255(f). At the

time of filing,

a

petitioner is

required to ^^specify all grounds for relief available." 28 U.S.C.
§ 2255 R. 2(b)(1). This requirement is made known to a petitioner
on the form used to submit his motion. (Doc. 1 at 4 ('^For this

motion, state every ground on which you claim that you are being
held in violation of the Constitution, laws or treaties of the

United States.") {emphasis added)). The deadline for Petitioner to
file his § 2255 motion was February 1, 2020, more than five months
before the motion to amend was filed. In advance of that deadline.

Petitioner had filed only his motion to vacate, which did not
include an ineffective assistance of counsel claim.

Petitioner's argument that the amendment relates back to the

earlier, timely-filed motion to vacate is flawed as the grounds
for relief asserted in the two distinct motions did not

[arise]

out of the [same] conduct, transaction, or occurrence." See Fed.
R. Civ. P. 15(c)(1)(B). In the context of habeas, the Supreme Court
has defined a common ^^conduct, transaction, or occurrence" to be

narrower than simply arising from the same '"trial, conviction, or
sentence." Mayle v. Felix, 545 U.S. 644, 664, 125 S. Ct. 2562,

2574, 162 L. Ed. 2d 582 (2005). Relation back is only available if

the amendment and original motion state claims that are tied to a
"common core of operative facts." Id. Petitioner's motion to vacate
was premised entirely on the failure of the Court to require the
Government

to

establish

the

scienter

element

of

his

charged

offence. (Doc. 1 at 4-7.) Petitioner's motion to amend, however,

raised the issue of counsel's alleged failure to investigate and

challenge the probable cause of his traffic stop. (Doc. 3.) Despite
Petitioner's contention, these issues do not share a "common core

of operative facts." Therefore, the motion to amend cannot relate
back to the motion to vacate and is untimely.

For the reasons discussed here and in the Magistrate Judge's

report

and

recommendation,

Petitioner's objection

(Doc.

3) is

OVERRULED. Accordingly, the report and recommendation (Doc. 4) is
ADOPTED as the opinion of the Court. As a result. Petitioner's
motion to vacate, set aside or correct sentence (Doc. 1) and motion
to amend (Doc. 3) are DENIED. The Clerk of Court is DIRECTED to
CLOSE this case.

Further, a federal prisoner must obtain

a

certificate of

appealability ("COA") before appealing the denial of his motion to
vacate. Applying the COA standards set forth in Brown v. United
States, Nos. 407CV085, 403CR001, 2009 WL 307872 at *1-2 (S.D. Ga.

Feb. 9, 2009), the Court discerns no COA-worthy issues at this
stage of the litigation, so no COA will issue either. 28 U.S.C.
§ 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases
Under 28 U.S.C. § 2255 ("The district court must issue or deny a

certificate of appealability when it enters a final order adverse
to the applicant.").

SO ORDERED this

Y'^

day of June 2021.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN

DISTRICT OF GEORGIA