Payne v. USA

Filing 30

ORDER: In light of the Second Circuit's 29 order, the Court has reconsidered petitioner's 25 motion to amend his 1 § 2255 petition. For the reasons set forth in the attached order, petitioner's 25 motion is denied. A copy of the order will be mailed to petitioner at his address of record. Ordered by Judge John Gleeson on 9/4/2014. (Herling, Adam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ONLINE PUBLICATION ONLY

ADRIAN PAYNE,
ORDER
Petitioner,
11-cv-4859 (JG)
- versus UNITED STATES OF AMERICA,
Respondent.

JOHN GLEESON, United States District Judge:
Petitioner Adrian Payne, proceeding pro se, has petitioned under 28 U.S.C. §
2255 for review of his conviction and sentence of six concurrent terms of life imprisonment and
ten additional years to run consecutively for, inter alia, two murders in aid of racketeering,
racketeering, and drug distribution. See Mot. to Vacate/Set Aside or Correct Sentence, ECF No.
1; see also United States v. Hunter et al., 04-cr-188 (JG) (E.D.N.Y.) (criminal case docket).
Here, on remand, I address Payne’s February 14, 2014, motion to amend his § 2255 motion. For
the reasons set forth below, the motion is denied.
BACKGROUND
The procedural history of Payne’s petition is somewhat complicated. I denied
Payne’s petition on the record on March 20, 2012, after oral argument and declined to issue a
certificate of appealability. See Minute Entry, Mar. 20, 2012. On April 19, 2012, Payne moved
for reconsideration of my order, see Mot. for Reconsideration, ECF No. 8, which I denied. See
Order, Apr. 30, 2012, ECF No. 9. Payne appealed the denial of his § 2255 petition as well as the
denial of his motion for reconsideration, see Notice of Appeal, June 27, 2012, ECF No. 11, and
also moved to amend his § 2255 petition. See Mot. to Am., Oct. 23, 2012, ECF No. 12. I denied

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Payne’s motion to amend and declined to issue a certificate of appealability, see Order, Jan. 22,
2013, ECF No. 17, which Payne appealed on March 14, 2013. See Notice of Appeal, Mar. 14,
2013, ECF No. 21.
On May 13, 2013 the Second Circuit denied his motion for a certificate of
appealability regarding the denial of his petition and the denial of the motion to reconsider. See
Mandate of USCA, May 13, 2013, ECF No. 23. Payne’s petition for a writ of certiorari was
denied by the United States Supreme Court on October 7, 2013. See Payne v. United States, No.
13-5708 (U.S. Oct. 7, 2013). On September 13, 2013, the Second Circuit declined to issue a
certificate of appealability for Payne’s appeal of my denial of his motion to amend his petition,
see Mandate of USCA, Sept. 13, 2013, ECF No. 24, and Payne’s petition for a writ of certiorari
on that decision was denied on February 24, 2014. See Payne v. United States, No. 13-8127
(U.S. Feb. 24, 2014).
Payne moved again to amend his § 2255 petition, on February 14, 2014, see Mot.
to Amend, Feb. 14, 2014, ECF No. 25, which I denied. See Order, Feb. 28, 2014. Payne then
moved for reconsideration of my order denying his motion to amend, see Mot. for
Reconsideration, Mar. 12, 2014, ECF No. 26, which I denied and transferred to the Second
Circuit as a successive § 2255 petition. See Order, Mar. 14, 2014. Payne appealed that order on
April 7, 2014. See Notice of Appeal, Apr. 7, 2014, ECF No. 28.
The Second Circuit remanded the case by summary order with instructions to
consider Payne’s February 14, 2014, motion to amend because
[w]hen Petitioner filed his second motion to amend, the Supreme Court had not
yet denied Petitioner’s request for a writ of certiorari in connection with his
previous motion to amend his initial § 2255 motion; accordingly, his original §
2255 proceedings were not final at that time, and his present motion to amend is
not successive.

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Payne v. United States, Nos. 14-943, 14-1072 (2d Cir. June 26, 2014); see also Littlejohn v.
Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (per curiam) (“[B]efore a motion or petition can be
regarded as successive, there must be some prior adjudication on the merits or a dismissal with
prejudice.”). On remand, the Second Circuit instructed me to take “whatever further action [the
Court] finds appropriate.” Id. (quoting Whab v. United States, 408 F.3d 116, 118-20 (2d Cir.
2005)).
DISCUSSION
Payne seeks to amend his § 2255 motion to add three additional claims.
Amendment in habeas cases is governed by Federal Rule of Civil Procedure 15, just as in any
other civil case. See 28 U.S.C. § 2242 (a habeas petition “may be amended or supplemented as
provided in the rules of procedure applicable to civil actions”). Accordingly, any new claims
Payne now wishes to add to his petition are barred by § 2255’s one-year statute of limitations –
unless Payne can show that these new claims relate back to his petition’s filing date under Rule
15(c). Thus, Payne must show that the new claims “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).
Here, Payne’s request to amend his petition is unavailing since his new claims are
either time-barred because they are insufficiently connected to his prior claims or are duplicative
of arguments that he already unsuccessfully raised on direct appeal.
Payne first asserts that he was denied effective assistance of counsel in violation
of the Sixth Amendment on the theory that his trial counsel, Norman Trabulus, failed to convey
information to Payne regarding a possible plea deal. Because the claim is otherwise untimely,

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Payne may amend to add this claim only if he satisfies Rule 15(c)’s “conduct, transaction, or
occurrence” test.
The Supreme Court held in Mayle v. Felix, 545 U.S. 644 (2005), that a new claim
in a habeas case does not relate back to a previous claim simply because both challenge the same
conviction. Id. at 664. Rather, the Court held that relation back is proper only “when the claims
added by amendment arise from the same core facts as the timely filed claims, and not when the
new claims depend upon events separate in both time and type from the originally raised
episodes.” Id. at 657 (internal quotation marks omitted).
Payne cannot satisfy the test set forth in Mayle. The claim that counsel failed to
advise him of a possible plea deal is different in “both time and type,” Mayle, 545 U.S. at 65,
from the ineffective assistance claims contained in his petition, which allege deficient lawyering
in relation to trial counsel’s alleged failure to: 1) investigate possible impeachment material; 2)
move for acquittal on certain counts post-trial; and 3) request certain jury instructions. See Mot.
to Vacate/Set Aside or Correct Sentence, ECF No. 1. The claim that Payne seeks to add would
rely on evidence independent from the factual bases for the ineffective assistance of counsel
claims contained in his petition. For example, proof of the new claim would require affidavits or
other testimonial evidence from both Payne and trial counsel about what his lawyer told him
about a possible plea offer. That record is entirely separate from the record necessary for the
claims of ineffective assistance included in his petition. Thus, the claim does not relate back and
is untimely.
The second claim that Payne seeks to add to his petition is framed as another
ineffective of counsel claim but is in fact simply reasserting an argument Payne unsuccessfully
made to the Second Circuit on direct review: that the two murder-in-aid-of-racketeering counts

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he was convicted of should have been dismissed as time-barred under the five-year statute of
limitations provided by 18 U.S.C. § 3282(a). Specifically, Payne argues that his trial counsel’s
failure to make a particular legal argument in support of applying § 3282(a)’s five-year statute of
limitations to the murder charges constitutes ineffective assistance of counsel.
Under Rule 15(a), “leave [to amend] shall be freely given when justice so
requires.” Fed. R. Civ. P. 15(a). “However, a district court may properly deny leave when
amendment would be futile.” Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45,
50 (2d Cir. 1998); see also Feliciano v. United States, No. 01-cv-9398, 2009 WL 928140, at *2
(S.D.N.Y. Mar. 30, 2009). Because on direct review the Second Circuit already “reject[ed]
Payne’s contention that the five-year statute of limitations barred his prosecution . . . for the
murders . . . in aid of racketeering,” United States v. Payne, 591 F.3d 46, 59 (2d Cir. 2010),
Payne’s motion to amend his § 2255 petition to reassert this claim is denied as futile.
Payne’s third claim, to the extent it can be discerned, appears to be yet another
argument that his murder convictions should have been dismissed as time-barred. Because the
Second Circuit already decided this issue, as discussed above, the motion to add this claim to the
§ 2255 petition is also denied as futile.
CONCLUSION
For the reasons set forth above, Payne’s motion to amend his § 2255 petition is
denied.
So ordered.

John Gleeson, U.S.D.J.

Dated: Brooklyn, New York
September 4, 2014

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