Penland v. USA

Filing 24

ORDER granting 22 Motion for withdrawal of Motion for Stay of Preliminary Order of Forfeiture; granting 23 Motion to Amend 2255 Motion; denying 12 Motion for Leave to FileAmended Sealed Response to Governments Answer in Opposition to - Petitioners Motion to Vacate ; denying 14 Motion for Stay of Preliminary Order of Forfeiture; denying 17 Motion to Seal Document ; denying 19 Motion for Summary Judgment an evidentiary hearing is scheduled for April 22, 2010, at 10:30. Signed by Magistrate Judge Dennis Howell on March 16, 2010. (jhg)

I N THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :0 9 C V 3 9 8 G U Y KENNETH PENLAND, P e titio n e r, V s. U N I T E D STATES OF AMERICA, R esp on d en t. __________________________________ ) ) ) ) ) ) ) ) ) )

ORDER

T H I S MATTER is before the court upon direct referral of the district court. O n March 8, 2010, the court conducted a non-evidentiary hearing and discussed the p le a d in g s thus far filed with counsel for the respective parties. The court has pending b e f o r e it the following motions: (1 ) p e titio n e r's Motion for Leave of Court for Petitioner to File an " A m e n d e d Sealed Response to Government's Answer in O p p o s itio n to - `Petitioner's Motion to Vacate, Set Aside, or C o r re c t Sentence'" (#12)(quotation marks in the original);1 p e titio n e r ' s Motion for Stay of Preliminary Order of Forfeiture P e n d in g Ruling on Defendant's Claim(s) Under 28 U.S.C. § 2255 in the Interests of Justice (#14); p e titio n e r's Motion for `Nunc Pro Tunc' Order granting Leave of

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To expedite matters, the respondent has waived response to the motion for leave to amend the petition. -1-

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C o u rt for Petitioner to File Sealed Response(s) in this Cause, and to Have Said Response(s) Remain Sealed Pending Further Order o f the Court (#17); p e tititio n e r's Motion for Summary Judgment Pursuant to Rule 56 o f the Federal Rules of Civil Procedure and Attached Affidavit in S u p p o r t (#19); p e titio n e r ' s unopposed Motion for Withdrawal by Petitioner of " M o tio n for Stay of Preliminary Order of Forfeiture" (# 2 2 )(q u o ta tio n marks in the original); and p e titio n e r's Motion for Leave of Court Pursuant to Rule 15 of the F e d e ra l Rules of Civil Procedure, to Allow Petitioner to File an A m e n d e d Motion Under 28 U.S.C. § 2255, to Vacate, or Correct S e n te n c e by a Person in Federal Custody and Memorandum of L a w (#23).

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A tta ch e d to such final motion, among others, is a document captioned "Proposed A m e n d e d Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence b y a Person in Federal Custody and Memorandum of Law." Docket Entry # 23-1. T h e court deems this to be petitioner's proposed amended petition along with his s u p p o rtin g affidavit. I. A m e n d in g the Petition W h ile such proposed amended petition goes on for some 11 pages, petitioner n e v e r clearly states his claim. In addition, petitioner cites to earlier legal arguments m a d e by the government in its response to the original petition, which causes u n n e c e s s a ry confusion as a Section 2255 is simply a statement of claim as well as the fa c tu a l reasons why petitioner believes he is entitled to relief under Section 2255.
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T h is limitation on the content of the petition can be gleaned from the rules as w e ll as the official Section 2255 form. Rule 2(c), Federal Rules Governing Section 2 2 5 5 Proceedings, provides: (c ) Standard Form. The motion must substantially follow either the fo rm appended to these rules or a form prescribed by a local districtc o u r t rule. F .R .G .§ 2 2 5 5 P. Such form is found at page 388 of the 2010 edition of Federal Civil J u d ic ia l Procedure and Rules (West Pub. 2010), and is commended to counsel for fu tu r e reference. In relevant part, the form seeks a clear and concise statement of each c la im as follows: G r o u n d One: ____________________________________________ (a ) S u p p o rtin g facts (Do not argue or cite law. Just state the specific fa c ts that support your claim.): __________________________ *** Id., Appendix of Forms, at p. 387 (emphasis in the original). The problem such Rule a n d form seeks to avoid is the amalgam of claims and admixture of underlying events th a t inevitably occurs when a petitioner believes he is subject to an unlawful sentence. Further, Rule 2 when read with the form specifically forbids use of the petition as a le g a l brief. In this case, petitioner's proposed amended petition in no manner follows or s u b s ta n tia lly follows the mandatory form, see supra, and the court has had great d iffic u lty weeding the allegedly meritorious appellate issues (which petitioner
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c o n te n d s should have been the basis of any attorney to at least file a notice of appeal) fro m the alleged facts which would support a claim under Section 2255. Indeed, the p r o p o s ed amended petition argues not only case law, but takes issue with legal a rg u m e n ts made by the government in its response to the original petition. By re q u irin g counsel for petitioner to amend his petition, rather than amend his reply, the c o u rt was not looking for counsel to simply shift the content of the Reply to the p ro p o s e d amendment. Fundamentally, an amended pleading presses the reset button, a n d including arguments to previous responses fails to advance the ball forward. Put a n o t h e r way, where a party is allowed to amend its pleading, the previous response h a s no significance as the original petition is no longer in play. Further reading on the im p a c t of amendment may be found in these cases: Taylor v. Abate, 1995 WL 3 6 2 4 8 8 , *2 (E.D.N.Y.1995)2 ("Defendants' motion to dismiss is addressed solely to th e original complaint···· Consequently, upon the filing of the amended complaint, th e ir motion is mooted and, therefore, denied."); In re Colonial Ltd. Partnership Litig., 8 5 4 F.Supp. 64, 80 (D.Conn.1994) (noting where "a plaintiff amends its complaint w h ile a motion to dismiss is pending" the court may "deny[ ] the motion as moot"); R a th k e v. HCA Management Co., Inc., 1989 WL 161431, at *1 n. 1 (D.Kan.1989)

Due to the limits of ECF, copies of unpublished decisions cited in this O rd e r are incorporated into the court record through reference to the Westlaw c ita tio n .
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(h o ld in g that "motion to dismiss ··· became moot when plaintiff filed an amended c o m p la in t" ); and Gresham v. Waffle House, Inc., 586 F.Supp. 1442, 1444 n. 1 ( N .D .G a .1 9 8 4 ) (same). R a th e r than make petitioner try again, the court will advance the action based o n petitioner's advanced age and the strain that travel to and from a Bureau of Prisons fa c ility must impose as well as the limitations on local jail facilities in providing p e titio n e r with both medical care and other opportunities. The court has thoroughly re ad the proposed amended petition and will construe the claim or "ground" petitioner is attempting to assert, as follows: C la im I P e titio n e r received ineffective assistance of counsel when trial c o u n s e l failed to file a notice of appeal on behalf of petitioner, all in v io la t io n of petitioner's right to effective assistance of counsel under th e Sixth Amendment to the United States Constitution and in v i o la tio n of the requirements of Strickland v. Washington and its p r o g en y . T h e court construes this to be petitioner's only claim or ground in accordance with R u le 4(b), Federal Rules Governing Section 2255 Proceedings. The court further c o n s id e rs the remainder of the "Proposed Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and M e m o ra n d u m of Law" (Docket Entry # 23-1) to be petitioner's statement of facts in s u p p o rt of such claim. Petitioner's legal arguments contained therein will be stricken,

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e x c e p t to the extent that he asserts his right to effective assistance of counsel is being a s s e rte d under the Sixth Amendment and that the assistance he received was in v io la tio n of Strickland v. Washington, 466 U.S. 668 (1984), and its progeny. The government shall be directed file its Answer to this amended claim and p e titio n e r shall be directed to file his Reply. Plaintiff is advised that it is in his Reply th a t he has an opportunity to not only reply to the government's response, but to cite th e court to whatever case law petitioner wishes the court to review in support of his c la im . The court notes that no discovery was requested by either party during the h e a rin g . II. T h e Lack of Need for Further Dispositive Motions C o u n s e l for petitioner is advised, specifically and respectfully, that while Rule 1 2 , Federal Rules Governing Section 2255 Proceedings, makes the Federal Rules of C iv il Procedure applicable, such rule goes on to provide that such application is only " t o the extent that they are not inconsistent with any statutory provisions or these r u le s ...." Fed.R.G.§2255 P. 12. The Federal Rules Governing Section 2255

P r o c e e d in g s specifically provide for a petition, an answer, and a reply as the operative p le a d in g s upon which a decision issues. Id., Rule 5. Indeed, the court, if it chooses to d o so, can summarily grant or deny the petition without pleading beyond the petition.

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W h ile routinely referred to as "federal habeas," a motion to vacate a sentence is not in fact a habeas corpus proceeding, but a motion attacking a sentence imposed in this court. Thus, petitioner's reliance on an annotation or law review article d i s c u s s in g procedure in federal court on habeas corpus proceedings is likely m is p la c e d , inasmuch as the disposition of Section 2254 (state habeas corpus) p r o c e e d in g s involves a separate set of federal rules, with judges often employing cross m o tio n s for summary judgment as the familiar framework for decision making. The m e th o d for disposing of Section 2255 actions is inapposite, and counsel need look no fu r th e r than the district court case he cites at page 11 of his proposed amended p e titio n , Lopez v. United States, 1:09cv441 (W.D.N.C. Feb. 16, 2010), to see that such c a s e was resolved without summary judgment motions being filed. Perhaps this d if fe re n c e can best be understood in context. In ruling on a Section 2255 motion, a fe d e ra l judge is in essence making a decision based on a criminal case that judge tried, w ith little need for statements of fact, supporting affidavits, and extensive legal b rie fin g . On the other hand, in a Section 2254 action, a federal judge is called upon to review the decision of a state judge, which involved a case the federal judge did not p re s id e over. Thus, the familiar framework of Rule 56 is employed to provide the d is tr ic t court with the ability to closely review the challenged state court decision. The court has provided this discussion neither to aid petitioner nor chastise

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c o u n s el;3 rather, the court has an affirmative duty to improve the practice of the Bar o f this court, especially in matters that many panel members may seldom encounter. B y pointing to these resources, the court believes efficiency may well be improved for a ll in subsequent actions. III. E v id e n tia ry Hearing C o u n s e l for petitioner has waived evidentiary hearing and cited the court to w h at appears to be the usual practice of the bench in the Western District of North C a ro lin a in similar circumstances, which is to simply grant the petition inasmuch as th e court should not decide issues of credibility on affidavits alone. See United States v . Santana, 263 Fed.Appx. 334, 335 (4th Cir. 2008). While the undersigned certainly a g re e s that credibility cannot be determined from affidavits, credibility can be d is c e rn e d at an evidentiary hearing where the court can hear the testimony, observe th e witnesses, and ask any questions it believes may be relevant. While the government provided the court with an exhaustive review of the p ra c tic e s of judges in the Western District of North carolina, the court contacted the d is tric t judge to whom this case is assigned (and who sits in both the Western and E a s te rn Districts of Virginia). The district court instructed and advised that it is his

Indeed, the court greatly appreciates panel attorneys who agree to take on challenging matters beyond the scope of a typical CJA appointment. -8-

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p re fe re n c e that an evidentiary hearing be held. To that end, the court will promptly s e t an evidentiary hearing. IV . W itn e ss es In a s m u ch as petitioner has received court-appointed counsel (for which he is m a k in g payments over time), the court believes he is also entitled to subpoena w itn e s se s to such hearing at government expense. While the ex parte provisions of R u le 17, Federal Rules of Criminal Procedure, would not be applicable (inasmuch as a Section 2255 motion is not a trial and there is no need to preserve defense strategy), th e court believes the other provisions of the rule would be applicable, which would in c lu d e screening petitioner's proposed witnesses. The court believes the following w itn e s s e s may have testimony relevant to the claim,4 as above defined: (1 ) (2 ) P a u l Bidwell, Esq.; G o rd o n Widenhouse, Esq.; and

Under United States v. Poindexter, 492 F.3d 263 (4th Cir. 2007), the court believe the issues the court will have to determine under Claim I are, as follows: (1) (2) (3) (4) whether petitioner unequivocally instructed his attorney to file a notice of appeal; and if not whether trial counsel had a duty to consult under Roe v. Flores-Ortega, 528 U.S. 470 (2000); whether trial counsel failed to fulfill his consultation obligations; and whether petitioner was prejudiced by his attorney's failure to fulfill these obligations.

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Id., at 273. -9-

(3 )

M r. Penland.

T h e court specifically sees no reason to call counsel for any co-defendants as the court c a n simply take judicial notice of any appeal counsel filed for any co-defendant. If a n y family members were present when counsel discussed the appeal with petitioner, th e court would consider issuing proposed subpoenas for such individuals depending o n the forecast of likely testimony. C o u n s e l for petitioner should immediately work on his Motion for Issuance of S u b p o e n a s at Government Expense and include therein a list of witnesses he wishes to subpoena to the evidentiary hearing. Each name should be accompanied by a p h y s ic al address as well as a telephone number at which the witness can be reached b y the United States Marshal, as well as a brief description of the relevance of the te s tim o n y to petitioner's claim.5 V. Housekeeping It appearing that the petition as well as the hearing is now back on track, the c o u rt will clean up any remaining motions that do not further the petition.

This discussion concerning petitioner's process is in no way intended to proscribe or limit the witnesses the government may desire to call as such is left to the sound determination of the Executive Branch. -10-

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ORDER I T IS, THEREFORE, ORDERED that (1 ) p e titio n e r's Motion for Leave of Court for Petitioner to File an " A m e n d e d Sealed Response to Government's Answer in O p p o s itio n to - `Petitioner's Motion to Vacate, Set Aside, or C o rr e c t Sentence'" (#12)(quotation marks in the original) is D E N I E D as withdrawn orally; (2) p e titio n e r 's Motion for Stay of Preliminary Order of Forfeiture P e n d in g Ruling on Defendant's Claim(s) Under 28 U.S.C. § 2255 in the Interests of Justice (#14) is DENIED as withdrawn by w ritte n motion; (3 ) p e titio n e r's Motion for `Nunc Pro Tunc' Order granting Leave of C o u rt for Petitioner to File Sealed Response(s) in this Cause, and to Have Said Response(s) Remain Sealed Pending Further Order o f the Court (#17) is DENIED as withdrawn orally; (4 ) p e tititio n e r's Motion for Summary Judgment Pursuant to Rule 56 o f the Federal Rules of Civil Procedure and Attached Affidavit in S u p p o r t (#19) is DENIED without prejudice as improvidently file d ;
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p e titio n e r's unopposed Motion for Withdrawal by Petitioner of " M o tio n for Stay of Preliminary Order of Forfeiture" ( # 2 2 ) (q u o ta tio n marks in the original) is GRANTED, as above p ro v id e d ;

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p e titio n e r's Motion for Leave of Court Pursuant to Rule 15 of the F e d e ra l Rules of Civil Procedure, to Allow Petitioner to File an A m e n d e d Motion Under 28 U.S.C. § 2255, to Vacate, or Correct S e n te n c e by a Person in Federal Custody and Memorandum of L a w (#23) is ALLOWED, and petitioner is granted leave to file h is Amended Petition, which is modified sua sponte as provided s u p r a;

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re sp o n d e n t is instructed to file its Answer to the Amended Petition, as m o d ifie d by the court herein, not later than March 26, 2010;

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p e titio n e r is instructed to file his Reply not later than April 2, 2010; a n evidentiary hearing is scheduled for April 22, 2010, at 10:30 a.m.; and p e titio n e r shall file his Motion for Issuance of Subpoenas not later than A p ril 9, 2010, in the manner herein provided.

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Signed: March 16, 2010

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