BAILEY v. UNITED STATES OF AMERICA

Filing 28

OPINION. Signed by Judge Noel L. Hillman on 12/21/2020. (rtm, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KAREEM BAILEY,

No. 1:17-cv-13586-NLH

Petitioner,
OPINION

v.
UNITED STATES OF AMERICA,
Respondent.

APPEARANCES:
KAREEM BAILEY
65333-050
FCI MCKEAN
P.O. BOX 8000
BRADFORD, PA 16701
Petitioner appearing pro se.
PATRICK C. ASKIN
OFFICE OF THE US ATTORNEY
401 MARKET STREET
4TH FLOOR
CAMDEN, NJ 08101
Attorney for Respondent United States of America.
HILLMAN, District Judge
Petitioner Kareem Bailey, a prisoner currently confined at
the Federal Correctional Institution, McKean, filed the present
motion to amend his earlier motion to vacate, set aside, or
correct his criminal sentence pursuant to 28 U.S.C. § 2255.
On March 18, 2013, Bailey was charged in a criminal
complaint with conspiracy to distribute 1 kilogram or more of

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heroin, in violation of Title 21, United States Code, Section
846 and 841(b)(1)(A).
JEI-9, ECF No. 1.

USA v. Abdullah et al, No. 1:14-cr-00050-

On February 5, 2014, Bailey was indicted

along with a total of fourteen defendants by a federal grand
jury on the same drug conspiracy charge, (Id. at ECF No. 45),
and on June 4, 2014, Bailey was charged in a 125-count
superseding indictment along with 17 other defendants.
ECF No. 194).

(Id. at

The superseding indictment charged Bailey with

Conspiracy to Distribute 1 kilogram or more of heroin (Count 1);
possession of firearms and the brandishing and discharge of
firearms in furtherance of a drug trafficking crime (Count 10);
and numerous counts of using a communications facility to
further a drug trafficking crime, in violation of Title 21,
United States Code, Section 843(b).
On January 16, 2015, the jury returned a guilty verdict
against Bailey as to Counts 1 and 10, and as to all but one of
the phone counts.

At the sentencing hearing, Judge Irenas

sentenced Bailey to 121 months for Count 1, one month greater
than the mandatory minimum for that offense, as well as 120
months for Count 10, to run consecutively, and a separate period
of time on the phone counts, which would run concurrently.
Accordingly, Bailey was sentenced to a total of 241 months.
Bailey then appealed to the Third Circuit Court of Appeals,
which affirmed his conviction and sentence on October 16, 2018;
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from there, he filed a motion for reconsideration, which was
denied by the Third Circuit on November 9, 2016.
v. Bailey, 840 F.3d 99 (2016).

United States

Bailey then filed a petition for

a writ of certiorari in the United States Supreme Court, which
was denied on February 21, 2017.

Bailey v. United States, 137

S. Ct. 1116 (2017).
On December 27, 2017, Bailey filed a motion to vacate, set
aside, or correct his sentence under Section 2255.

(ECF No. 1).

At the Court’s direction, he then filed an amended motion to
vacate on February 13, 2018.

(ECF No. 5).

That motion put

forth two central claims: that Bailey suffered ineffective
assistance of counsel due to the alleged failure of his trial
counsel to (1) properly and sufficiently counsel him as to the
possible sentence he faced if he went to trial, rather than
accepting an offered plea deal, and (2) put forth an argument
that under United States v. Collado, 975 F.2d 985 (3d Cir.
1992), “the drugs attributed to Petitioner were not reasonably
foreseeable to him or within the scope of his agreement,” and
therefore should not have been considered in determining the
offense level to utilize in calculating the proper guidelines
range under the Sentencing Guidelines.
The Government filed a letter response on November 1, 2018,
(ECF No. 9), and then at the Court’s direction filed a
memorandum of law in opposition to the motion to vacate on
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January 7, 2019.

(ECF No. 12).

Finally, on January 17, 2020,

Bailey filed the present motion to amend his motion to vacate,
seeking to add six additional claims of ineffective assistance
of counsel.

(ECF No. 15).

The Government filed a brief

opposing the motion to amend on July 2, 2020, (ECF No. 22) and
Petitioner filed a response, not addressing the merits of the
arguments, on July 21, 2020.
I.

(ECF No. 26).

Legal Standard
A habeas petition “may be amended or supplemented as

provided in the rules of procedure applicable to civil actions.”
28 U.S.C. § 2242.

Federal Rule of Civil Procedure 15 permits

the amendment of pleadings by leave of court, and such leave
“shall be freely given when justice so requires.” Fed. R. Civ.
P. 15(a).

Whether to permit amendment is left to the discretion

of the court, and denial is proper when there is “undue delay,
bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of
the amendment, futility of the amendment, etc.”

Foman v. Davis,

371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Great
Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d
159, 174 (3d Cir. 2010).

Amendment is “futile” if “that claim

would not be able to overcome the statute of limitations.”
Cowell v. Palmer Twp., 263 F.3d 286, 296 (3d Cir. 2001).
4

Where

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a claim is barred by the statute of limitations, amendment is
only permitted if the amendment “relates back to the date of the
original pleading” pursuant to Rule 15(c).

Anderson v. Bondex

Int'l, Inc., 552 F. App'x 153, 156 (3d Cir. 2014).
“An amendment to a pleading relates back to the date of the
original pleading when the amendment asserts a claim or defense
that arose out of the conduct, transaction, or occurrence set
out — or attempted to be set out — in the original pleading.”
Fed. R. Civ. P. 15(c)(1)(B).

“An amended habeas petition ...

does not relate back ... when it asserts a new ground for relief
supported by facts that differ in both time and type from those
the original pleading set forth.”

Mayle v. Felix, 545 U.S. 644,

650, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005).

“So long as the

original and amended petitions state claims that are tied to a
common core of operative facts, relation back will be in order.”
Id. at 664, 125 S.Ct. 2562.
II.

Analysis

In his motion to amend, Petitioner seeks the Court’s
permission to amend his motion to vacate to include six
additional claims of ineffective assistance of counsel: that his
counsel (1) failed to raise an argument under a retroactive
amendment to the Sentencing Guidelines for drug cases, Amendment
782, which Petitioner claims would have resulted in a two-level
reduction to his offense level; (2) “failed to argue ‘Disparity
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in Sentencing’ challenges;” (3) failed to argue post sentencing
rehabilitation and pre-sentence rehabilitation; (4) failed to
argue Petitioner’s minor, “in between,” or minimal role in the
offense; (5) failed to argue the effect of the decision in
United States v. Rowe, 919 F.3d 752 (3d Cir. 2019) on drug
quantity; and (6) failed to argue Petitioner’s “Johnson II,
Dimaya and now Davis issues.”

(ECF No. 15 at 1-2).

The Court first notes that in order for Petitioner’s claims
to be timely, they must relate back to his original petition; as
the Court described above, Petitioner’s cert petition was denied
on February 17, 2017.

28 U.S.C. § 2244(d)(1) provides that “[a]

1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.”

That limitation period begins to

run from “the date on which the judgment became final by the
conclusion of direct review” — here, the date Petitioner’s cert
petition was denied.

Petitioner did not file his motion for

leave to amend until January 17, 2020; accordingly, any claims
that do not relate back to his original, timely motion to vacate
are well outside of the limitations period, and must be
dismissed as untimely.
The Court next finds that all of Petitioner’s claims
clearly differ in both time and type from Count I of his
original motion to vacate.

That claim asserted that Petitioner
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had received ineffective assistance of counsel because his trial
counsel failed to adequately explain the length of the sentence
he likely faced if convicted of the charged offenses at trial,
and therefore did not provide him adequate and proper advice as
to the benefits of the plea agreement offered by the government.
(ECF No. 5 at 15).

As to time, Petitioner’s first claim clearly

concerns his counsel’s conduct prior to trial and prior to his
conviction; as to type, the relevant facts regarding this claim
revolve around the exact advice given by Petitioner’s counsel at
the pre-trial stage, and whether he sufficiently informed
Petitioner of the potential risks of rejecting a plea deal.

All

six of Plaintiffs proposed new claims relate either to his
counsel’s alleged failure to raise a series of arguments for a
reduced sentence at the post-conviction sentencing phase or to
the specific facts of the underlying conspiracy itself, and
accordingly differ in both time and type.
The Court reaches the same conclusion regarding whether
Petitioner’s new claims (1), (2), (3), and (6) as listed above
relate back to Count II of the original timely motion.

That

count, as explained above, was that Petitioner’s counsel had
failed to raise an objection to the drug quantity attributable
to Petitioner at sentencing.

Petitioner argued in his motion to

vacate that his trial counsel failed to put forth an argument,
under United States v. Collado, 975 F.2d 985 (3d Cir. 1992),
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that “the drugs attributed to Petitioner were not reasonably
foreseeable to him or within the scope of his agreement,” and
therefore should not have been considered in determining the
offense level to utilize in calculating the proper guidelines
range under the Sentencing Guidelines.
None of claims (1), (2), and (3) are tied to a common core
of operative facts as this original claim.

Instead, each of

these claims are focused on the events and facts surrounding the
sentencing phase of Petitioner’s trial: they argue that
Petitioner’s counsel failed to put forth arguments regarding (1)
the potential need for a reduction in base offense level under
Amendment 782, (2) Petitioner’s post sentencing rehabilitation
and pre-sentence rehabilitation, and (3) the disparity in
sentencing between Petitioner and his co-defendants.
The first claim is focused entirely on whether the Court
should have reduced Petitioner’s offense level based on a 2014
amendment to the Sentencing Guidelines, which reduced the base
offense levels in Section 2D1.1 for controlled substances
offenses by two levels from the previous base offense levels; as
this was an across-the-board reduction to base levels for
controlled substances, all relevant facts relate only to the
actions taken by counsel and the Court in the sentencing phase
of the trial, and are unrelated to the drug quantities argument
made in Claim II of the original motion.
8

The second argument

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centers entirely on facts related to Petitioner’s alleged pre
and post-sentencing rehabilitation, facts that have nothing to
do with his involvement in the conspiracy and focus, on their
face, on changes he had made in his life after the conspiracy
was over.

Next, the third new claim is focused entirely on the

specific sentences imposed on Petitioner and his co-defendants
and the relevant comparisons between them; again, not
overlapping with the arguments made in Petitioner’s timely
motion to vacate.
Petitioner’s “untimely claim[s] do[] not seek to clarify
his timely ineffective assistance claim[s]; [they] purport[] to
introduce [] new theor[ies] into the case.”

Whitaker v.

Superintendent Coal Township SCI, 721 F. App'x 196, 202 (3d Cir.
2018).

Petitioner was required to set forth all grounds for

relief in his original motion to vacate and was specifically
warned that he may be “barred from presenting additional grounds
at a later date.” (ECF No. 5 at 15).

See Mayle, 545 U.S. at

655–56, 125 S.Ct. 2562 (model habeas form includes cautionary
instruction to include all grounds for relief); Whitaker, 721 F.
App'x at 202.

Accordingly, the Court finds that these claims do

not relate back to Petitioner’s timely motion, and therefore
will dismiss the motion to amend as to all three claims.
Petitioner’s fourth new claim, that his counsel failed to
argue the effect of the decision in United States v. Rowe, 919
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F.3d 752 (3d Cir. 2019) on drug quantity, does appear to relate
back to his second original claim.

In Rowe, the defendant was

charged with one count of distribution and possession with
intent to distribute 1,000 grams of heroin; the jury convicted
the defendant of that charge based on evidence related to
multiple drug transactions and instances of possession during an
approximately four-month time frame.

Id. at 756.

The Third

Circuit held in Rowe’s favor, finding that this evidence was
insufficient to meet 21 U.S.C § 841’s quantity threshold because
separate distributions during the indictment period cannot be
aggregated to meet the threshold.

Id. at 760.

Accordingly, the

relevant facts and evidence underlying both Petitioner’s
original, timely claim and this new claim both center on the
quantities of drugs involved in the offenses Petitioner was
convicted of in the underlying trial.
However, Petitioner’s motion to amend must still be denied
as to this claim for lack of merit.

First, the Court notes that

the Third Circuit did not issue its opinion in Rowe until 2019,
four years after Petitioner’s sentencing.

Second, as other

courts in this circuit have noted, “Rowe did not involve a
conspiracy charge.

Furthermore, ‘[b]ecause the drug quantity

for conspiracy is an offense-specific determination of the
quantity involved in the entire conspiracy, those drugs need not
be possessed by any one conspirator at one specific time.’”
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Britt v. United States, No. 18-16357 (PGS), 2020 WL 3249118, at
*11 (D.N.J. June 16, 2020) (quoting United States v. Perrin, No.
2:14-CR-205-2, 2019 WL 3997418, at *3 (W.D. Pa. Aug. 23, 2019)).
Here, “Petitioner was charged with conspiracy as opposed to a
substantive possession with intent to distribute charge.
Accordingly, Petitioner’s counsel cannot be deemed ineffective
for failing to object where the underlying objection would have
lacked merit.”

Id. (citing United States v. Sanders, 165 F.3d

248, 253 (3d Cir. 1999) (“There can be no Sixth Amendment
deprivation of effective counsel based on an attorney’s failure
to raise a meritless argument.”)).

Therefore, the motion to

amend is denied as futile as to this claim.
Petitioner’s fifth new claim is that his counsel failed to
argue for a downward adjustment to his offense level based on
his minimal or minor role in the conspiracy pursuant to § 3Bl.2
of the United States Sentencing Guidelines.

Similar to

Petitioner’s fourth claim, the Court finds that this claim
arises from a common core of operative facts as Count II of the
original motion to vacate.

Petitioner’s original claim based on

Collado was that his counsel should have put forth arguments
regarding the extent of his involvement in the conspiracy,
focusing on the quantity of drugs involved that he could have
reasonably foreseen.

Collado held that the relevant factors for

such consideration include whether the “amounts distributed by
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the defendant's co-conspirators were distributed ‘in furtherance
of the . . . jointly-undertaken . . . activity,’ were ‘within
the scope of the defendant's agreement,’ and were ‘reasonably
foreseeable in connection with the criminal activity the
defendant agreed to undertake.’”

975 F.2d at 995 (quoting

U.S.S.G. § 1B1.3, application note 1).
Petitioner’s new claim is related as to both facts and
time; the Third Circuit has explained that in assessing whether
a downward adjustment is warranted under § 3Bl.2, courts must
consider “such factors as the nature of the defendant's
relationship to the other participants, the importance of the
defendant's actions to the success of the venture, and the
defendant's awareness of the nature and scope of the criminal
enterprise.”

U.S. v. Self, 681 F.3d 190, 201 (3d Cir. 1998)

(quoting United States v. Headley, 923 F.2d 1079, 1084 (3d Cir.
1991)).

These factors overlap significantly with the relevant

facts to consider under Petitioner’s Collado argument regarding
what quantity of drugs involved in the conspiracy could properly
be attributed to him, and accordingly analysis of these two
claims focuses on common facts and a common time-frame.

The

Court therefore finds that this claim does relate back to
Petitioner’s original motion to vacate, and will grant the
motion to amend as to this claim.
Finally, the Court finds that, regardless of timeliness,
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Petitioner’s sixth claim fails for lack of merit.

Petitioner

argues that his counsel failed to argue Petitioner’s “Johnson
II, Dimaya and now Davis issues.”

The referenced cases, Johnson

v. United States, 135 S.Ct. 2551 (2015), Sessions v. Dimaya, 138
S.Ct. 1204 (2018), and United States v. Davis, 139 S.Ct. 2319
(2019), are Supreme Court decisions finding that residual
clauses referring to “crimes of violence” are unconstitutionally
vague and therefore invalid.

However, those holdings were based

on the finding that the residual clause defining “crime of
violence” was unworkable, without any discussion of the
definition of “drug trafficking crime” found in § 924(c)(2).
Those cases do not “invalidate convictions for using and
carrying a firearm in relation to a drug trafficking crime.”
Figueroa v. Ortiz, No. 19-16823 (RMB), 2020 U.S. Dist. LEXIS
74169, at *8-9 (D.N.J. Apr. 28, 2020).

Here, Petitioner was

convicted of using and carrying a firearm in relation to a drug
trafficking crime, not a “crime of violence” — accordingly, his
counsel cannot have been ineffective in failing to put forth an
inapplicable argument based on the cases mentioned above.

The

motion to amend will be dismissed as to this claim as well.
Conclusion
As explained above, the Court will grant Petitioner’s
motion to amend as to his ineffective assistance of counsel
claim regarding a possible downward departure under § 3Bl.2 of
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the Sentencing Guidelines, and deny it as to all other claims.
The Court notes that, in its brief opposing the motion to amend,
the Government included a one-paragraph response regarding the
merits of Petitioner’s argument on his surviving new claim.
However, given the fact that the Government’s brief was focused
on opposing the motion to amend, and that the Court will be
better able to properly analyze the claim and determine whether
an evidentiary hearing is needed with full briefing from both
sides, the Government will have twenty-one (21) days to file a
brief supplementing their response to that claim if it wishes to
do so.

If the Government chooses to file any supplemental

briefing, Petitioner may file a reply brief in further support
of his motion to vacate within thirty (30) days of the filing of
the Government’s supplemental brief.

After this round of

briefing, the Court will turn to the merits of Petitioner’s
motion to vacate.
An appropriate Order will be entered.

Date: December 21, 2020
At Camden, New Jersey

/s Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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