Clifton v. United States of America

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion of Raymond L. Clifton to amend his motion to vacate, set aside, or correct sentence [Doc. # 5 ] is granted with respect to the claim of ineffective assistance of counsel (Ground Ten) only. The motion to amend is denied in all other respects. Signed by District Judge Carol E. Jackson on 3/18/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAYMOND L. CLIFTON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:10-CV-1990 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of Raymond L. Clifton to amend
his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The
United States has not filed a response, and the time allowed for doing so has expired.
I. Background
Clifton was charged by indictment with armed robbery of a federally insured
institution, in violation of 18 U.S.C. § 2113(a) and (d) (Count I); using, carrying, and
brandishing a firearm during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii) (Count II); and being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) and 924(e) (Count III). Following a jury trial, he
was found guilty on all three counts and was sentenced to an aggregate 480-month
term of imprisonment. The judgment was affirmed on appeal. United States v.
Raymond L. Clifton, No. 07-3464 (8th Cir. July 22, 2009)(unpublished opinion). Clifton
did not file a petition for a writ of certiorari.
On October 21, 2010, Clifton filed a § 2255 motion to vacate. In the motion, he
asserts the following grounds for relief:

(1) the convictions violate the double jeopardy clause and
the prohibitions against cruel and unusual punishment and
excessive fines and penalties, in violation of the Fifth, Sixth,
and Eighth Amendments;
(2) the convictions were obtained in violation of the speedy
trial guarantees of the Fifth and Sixth Amendments;
(3) the convictions were obtained through acts of fraud,
unlawful searches and seizures, illegal electronic
surveillance, the prosecutor’s withholding of favorable
evidence, and perjured testimony; and
(4) denial of effective assistance of counsel at trial and on
appeal.
In the motion, Clifton alleged facts in support of all but the third ground for relief. The
United States responded to the motion to vacate on December 28, 2010. Among other
things, the government argues in its response that the Ground 3 should be dismissed
as “impermissibly vague and conclusory.” The instant motion to amend was filed on
February 7, 2011. In it, Clifton asserts several new grounds for relief and facts that
purport to relate to the Ground 3 of the original motion.
II. Discussion
The Antiterrorism and Effective Death Penalty Act (AEDPA) establishes a oneyear period of limitation for motions for post-conviction relief under § 2255. 28 U.S.C.
§ 2255(f). The one-year period begins to run---as relevant here---from the date on
which the judgment of conviction became final. 28 U.S.C. § 2255(f)(1). In the instant
case, Clifton sought appellate review of the district court’s judgment but he did not file
a petition for certiorari. In Clay v. United States, 537 U.S. 522 (2003), the Supreme
Court wrote, “We hold that for federal criminal defendants who do not file a petition for
certiorari with this Court on direct review, § 2255's one-year limitation period starts

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to run when the time for seeking such review expires.” Id. at 532. See also United
States v. Hernandez, 436 F.3d 851, 856 (8th Cir. 2006).

Rule 13(1) of the Rules of

the Supreme Court of the United States provides that “a petition for a writ of certiorari
to review a judgment in any case, civil or criminal, entered by a state court of last
resort or a United States court of appeals . . . is timely when it is filed within 90 days
after entry of the judgment.”
In Clifton’s direct criminal appeal, the Eighth Circuit issued its ruling on July 22,
2009. Therefore, Clifton’s conviction became final 90 days later, or on October 20,
2009. Clifton had until October 21, 2010 to file a § 2255 motion within the one-year
limitations period. There is no dispute that his motion to vacate was timely filed.
The amended motion, however, is outside the one-year limitations period. As
such, the Court can consider the claims in the amended motion only if (1) the new
claims relate back to the claims in the original motion under Fed. R. Civ. P. 15(c) or (2)
there are equitable reasons for tolling the limitations period.
A. Relation Back
Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure provides, in relevant
part:
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
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(B) the amendment asserts a claim . . . that arose out of
the conduct, transaction, or occurrence set out---or
attempted to be set out---in the original pleading; ***
The same “conduct, transaction, or occurrence” is narrowly defined to mean claims
that are tied to a common core of operative facts. Mayle v. Felix, 545 U.S. 644, 664

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(2005); United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999). Relation back
will not be allowed when the new claims depend upon events separate both in time and
type from the originally raised claims. Mayle, 545 U.S. at 657. In the context of
proceedings under 28 U.S.C. § 2255 that are subject to the limitations provisions of
the AEDPA, relation back is permitted if the amended claims “can be said to have
arisen out of the same set of facts as [the movant’s] original claims.” Mandacina v.
United States, 328 F.3d 995, 1000 (8th Cir. 2003). Thus, an amended claim may be
deemed to relate back if it serves to add additional facts and specificity to the original
claim. Id. at 1000-01.
A comparison of the original §2255 motion and the proposed amendment lead
the Court to conclude that the relation back doctrine does not apply to most of the
amended claims. In the amendment, Clifton asserts claims concerning the composition
of the jury pool and the accuracy of the court reporter’s recording and transcription of
the trial (Ground Five), jury instruction error (Ground Eight), factual innocence
(Ground Nine). None of these claims were asserted in the original motion and none
can be said to have arisen from the same set of facts presented in the original motion.
In Ground 3 of the § 2255 motion, Clifton claimed in conclusory fashion that his
conviction and sentence were obtained in violation of the First, Fourth, Fifth, Sixth,
Eighth, Ninth, and Tenth Amendments and resulted from acts of fraud, suppression of
evidence, unlawful search and seizure, and unlawful “sanitization” of transcripts. He
also claimed that the government eavesdropped on his privileged communications and
censored his mail, and that the prosecutor failed to disclose favorable evidence and
presented perjured testimony at trial. Although Clifton submitted factual support for

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the other grounds asserted in the original motion, he submitted no facts in support of
Ground 3. In the proposed amendment, Clifton sets out facts that he argues support
his claims in Ground 3. These “new” facts, however, cannot be said to have “arisen
out of the same set of facts as [the movant’s] original claims,” because there was no
set of facts set forth in the original claim. Because of the conclusory nature of Clifton’s
averments in Ground 3, it was impossible for the government to respond to the merits
of his claim. Unlike Rule 8(a) of the Federal Rules of Civil Procedure, which only
requires notice pleading, Rule 2(b) of the Rules Governing § 2255 Proceedings requires
the motion to “specify all the grounds for relief available” and “state the facts
supporting each ground.” Clifton’s reliance on Rule 15(c)(1)(B) to cure his belated
assertion of facts is unavailing.
The facts that Clinton alleges in Ground Ten of the proposed amendment serve
to explain and supplement the claim of ineffective assistance of counsel asserted in
Ground 4 of his § 2255 motion. The Court finds that the proposed amendment relates
back to the original claim and, therefore, the allegations of Ground Ten will be
incorporated into Ground 4.
B. Equitable Tolling
In the appropriate case, equitable tolling can be invoked to toll the one-year
limitations period under § 2255(f). “Equitable tolling is appropriate where extraordinary
circumstances beyond a prisoner’s control make it impossible to file a petition on time,
or where a defendant’s conduct lulls the prisoner into inaction . . . The doctrine applies
‘only when some fault on the part of the defendant has caused a plaintiff to be late in
filing, or when other circumstances, external to the plaintiff and not attributable to his

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actions, are responsible for the delay.’” Maghee v. Ault, 410 F.3d 473, 476 (8th Cir.
2005), quoting Flanders v. Graves, 299 F.3d 974, 977 (8th Cir. 2002) [other citations
omitted].

The prisoner must demonstrate the existence of extraordinary

circumstances beyond his control and that he acted with due diligence in pursuing the
motion. E.J.R.E. v. United States, 453 F.3d 1094, 1098
This is not the typical case in which equitable tolling is invoked to excuse the
untimely filing of a motion to vacate. Indeed, Clifton filed his § 2255 motion within the
limitations period.

What is at issue here is whether extraordinary circumstances

beyond his control prevented Clifton from including the amended grounds for relief in
his original motion.
Clifton’s arguments for equitable tolling can be summarized as follows: (1)
difficulties involving the prison mailing facility and its mailing system; (2) confiscation
of his legal materials; (3) limited access to the prison libraries; and (4) prohibition from
receiving monies from any sources outside the prison. Even if all of these arguments
could be substantiated, they do not support equitable tolling.
As to the first argument, Clifton points to difficulties accessing the governmentowned devices that print the labels required for prisoner mail. According to Clifton,
since January 2, 2011, the Bureau of Prisons has refused to send his mail unless it
bears a mailing label printed by one of these devices. He also complains that, because
of other prison rules, his access to the mail has been delayed or denied and that his
mail has been unlawfully opened by prison staff. Despite all of the impediments he
recites, Clifton met the October 21, 2010 deadline for filing his § 2255 motion. Clearly,
none of the difficulties he encountered with the prison mail system can support

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equitable tolling.
Likewise, the alleged confiscation of Clifton’s legal materials did not prevent him
from filing a timely § 2255 motion. Nor does the limited access to the prison library
or the financial constraints he claims justify his omission of the amended grounds from
his timely-filed motion.
III. Conclusion
For the reasons discussed above, the Court concludes that Clifton cannot invoke
equitable tolling to excuse his failure to include all grounds for relief in his timely-filed
§ 2255 motion.

Also, with one exception, the claims asserted in the proposed

amendment do not relate back to the claims asserted in the original motion.
Accordingly,
IT IS HEREBY ORDERED that the motion of Raymond L. Clifton to amend his
motion to vacate, set aside, or correct sentence [Doc. # 5] is granted with respect
to the claim of ineffective assistance of counsel (Ground Ten) only . The motion
to amend is denied in all other respects.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 18th day of March, 2014.

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