Cole v. USA
ORDER DISMISSING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 8/10/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Civ. No. 1:14-cv-01118-STA-egb
Cr. No. 1:11-cr-10080-STA-1
ORDER DISMISSING § 2255 MOTION,
DENYING CERTIFICATE OF APPEALABILITY,
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is the amended motion of Petitioner, Frederick Cole, to vacate, set aside,
or correct his sentence pursuant to 28 U.S.C. § 2255 (“Amended Petition”). (Am. Pet., ECF No.
8.) For the reasons that follow, the Amended Petition is DISMISSED as untimely.
On November 9, 2011, a criminal information was filed in this district charging Cole with
conspiracy to traffic more than one hundred kilograms of marijuana, in violation of 21 U.S.C.
§§ 846. (Information, United States v. Cole, No. 1:11-cr-10080-STA-1 (W.D. Tenn.) (“Cr. Case”),
ECF No. 2.) On that same date, the defendant appeared before the Court to waive his right to an
indictment and plead guilty to the information. (Waiver, Cr. Case, ECF No. 3; Min. Entry, Cr.
Case, ECF No. 5; Plea Agreement, Cr. Case, ECF No. 6.)
Petitioner was represented by attorney Mark Donahoe throughout a three-day sentencing
hearing. The Court heard testimony and argument related, primarily, to the issues of drug
quantity and obstruction of justice. (Sent. Hrg. Tr., Cr. Case ECF Nos. 41, 44, 50.) The Court
found that, for purposes of establishing Cole’s base offense level, the total drug quantity
attributable to him fell within the 1000-3000 kilogram range. See 2011 United States Sentencing
Commission, Guidelines Manual (“U.S.S.G.” or “Guidelines”), § 2D1.1. The Court also found
that Cole’s offense level should be increased by two levels for obstruction of justice involving
his attempts to threaten federal officials involved in his case. See U.S.S.G. § 3C1.1. After
granting a downward departure, the Court sentenced the defendant to 240 months’ incarceration,
four years of supervised release, and a $100 special assessment. (Judgment, Cr. Case, ECF No.
34.) Judgment was entered on September 4, 2012. (Id.)
Petitioner subsequently filed a pro se notice of appeal. (Not., Cr. Case, ECF No. 39.) On
December 12, 2012, the Sixth Circuit granted the government’s motion to dismiss the appeal as
untimely. United States v. Cole, No. 12-6392 (6th Cir. Dec. 12, 2012).
POST-CONVICTION FILINGS AND § 2255 PETITION
On February 11, 2013, Petitioner filed a motion in his criminal case styled “Judicial
Notice of Records and Permission to Proceed In Forma Pauperis” (“Motion for Transcripts”).
(Mo. Trans., Cr. Case, ECF No. 45.) By his motion, Cole requested “a copy” of his sentencing
transcripts “at the expense of the government.” (Id. at 1.) He explained that his attorney had
“fail[ed] to mail his transcripts” to him, and that he needed them in order “to file a proper motion
for relief pursuant to 18 U.S.C. § 3742 and § 2255.” (Id. at 2.) He “assert[ed] the transcripts
contain sentencing violations as depicted in the Supreme Court decision of Shepard v. U.S., 544
U.S. 13 . . . and Townsend v. Burke, 334 U.S. 736, 740-41[,] . . . where it is error to be sentenced
base on inaccurate information.” (Id.) The Court subsequently denied the motion. (Order, Cr.
Case, ECF No. 46.)
On May 20, 2014, Petitioner, through retained counsel, filed his § 2255 Petition. (Pet.,
ECF No. 1.) He asserted a single ground for relief and supplied no supporting facts:
Ground One: The petitioner received ineffective assistance of counsel, in
violation of his Sixth Amendment rights.
Supporting Facts: Present counsel has only recently begun work on this case and
would, if it please the Court, reserve the right to file a further amended and
supplemental motion more fully setting out the defendant’s claim.
(Id. at 4.) The Petition also referenced Petitioner’s Motion for Transcripts, characterizing it as
Coles’ “initial § 2255 motion.” (Id. at 5.)
In its review of the Petition on October 13, 2014, the Court noted that, despite counsel’s
statement that he would “further amend” the petition, he had not done so. (Order, ECF No. 5 at
1.) The Court therefore ordered Petitioner “to file any amendment or supplement he may have to
his § 2255 Motion within twenty-eight days.” (Id.) The Amended Petition was not filed until
April 21, 2015, and was filed without leave of Court. (Am. Pet., ECF No. 8.)
On April 27, 2017, the Court allowed the filing of the Amended Petition nunc pro tunc,
granted counsel’s motion to withdraw, and ordered the government to respond to the Amended
Petition. (Order, ECF No. 12.)
Although the Amended Petition was prepared and submitted by counsel, the specific
factual allegations appear to be Petitioner’s own words. (See Am. Pet., ECF No. 8 at 4, 13.)
With regard to many of the allegations, it is difficult to discern what, exactly, Petitioner is trying
to claim. Although a petition prepared by counsel is not entitled to the same liberal construction
reserved for pro se petitions, the Court nevertheless employs some measure of liberality in
construing Cole’s claims as follows:
Claim 1: Counsel was ineffective for failing to object to the “inaccurate
information” used at sentencing to enhance his offense level under the Guidelines,
(a) With regard to the drug quantity involved, counsel should have
objected to the introduction of false statements attributed to
Timothy Davis relating to Petitioner’s involvement in the “truck
full of drugs.”
(b) With regard to obstruction of justice, counsel should have
objected to hearsay evidence, introduced through a law
enforcement officer, that two people “accused [Petitioner] of
making threats against officials.”
(c) With regard to obstruction of justice, counsel should have
objected to the introduction of false statements by co-defendant
Angela Bass regarding Petitioner’s threats.
(d) With regard to obstruction of justice, counsel should have
objected to the testimony of a fellow inmate who described Cole’s
conduct and threats.
Claim 2: Counsel was ineffective for failing to file a notice of appeal after
Petitioner “told him to.”
Claim 3: Counsel was ineffective in providing an incorrect sentencing prediction.
Claim 4: Counsel was ineffective because he had a conflict of interest.
Specifically, counsel had previously represented the lead investigator on
Claim 5: Counsel was ineffective for failing to ensure that Petitioner received a
“copy of the wire-tap warrants.”
(Am. Pet., ECF No. 8 at 4, 13.)1
In its answer, Respondent asserts that the habeas claims are untimely and,
alternatively, without merit. (Ans., ECF No. 13.) In support of its merits arguments, the
government relies on the affidavit of attorney Donahoe. (Donahoe Aff., ECF No. 13-1.)
Petitioner’s reference to his “criminal history points [being] . . . wrong” is
confusing, and thus the Court does not construe it as a cognizable claim. Cole alleges
that discovery showed that the wife and cousin of his co-defendant Andre Walker had
“been to family gatherings,” and some “guy” “talk[ed] about [how] he used to supply
Walker with drugs not me.” (Am. Pet., ECF No. 8 at 4.) The allegation has no obvious
bearing on the criminal history points calculation.
Donahoe avers that he did not have a conflict of interest because he never represented the
lead investigator in Cole’s case; he did not advise Petitioner that he would receive no less
than 36 months and no more than 60 months in prison; and Petitioner did not ask him to
appeal his conviction or sentence. (Id.)
The Court determines that the claims asserted in the Amended Petition are timebarred, and therefore must be dismissed. 2
1. § 2255 Limitations Period
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended 28
U.S.C. §§ 2244(b) and 2255 to limit a defendant to his direct appeal and one collateral attack,
filed within one year of the date his conviction becomes final.
28 U.S.C. § 2244 et seq.
Paragraph (f) of 28 U.S.C. § 2255 provides:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws
of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review; or
The claims set forth in the Amended Petition are before the Court, as that self-contained
pleading superseded the Petition. See Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014)
(amended petition superseded original petition) (citing In re Refrigerant Compressors Antitrust
Litig., 731 F.3d 586, 589 (6th Cir. 2013) (“An amended complaint supersedes an earlier
complaint for all purposes.”)).
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
28 U.S.C. § 2255(f).
Generally, “a conviction becomes final for purposes of collateral attack at the conclusion
of direct review.” United States v. Cottage, 307 F.3d 494, 498 (6th Cir. 2002). For a defendant
who does not take a direct appeal, the judgment of conviction becomes final upon the expiration
of the time for him to seek direct review. Sanchez-Castellano v. United States, 358 F.3d 424,
426–27 (6th Cir. 2004). Under the Federal Rules of Appellate Procedure, a defendant in a
criminal case normally has fourteen days from entry of judgment in which to appeal. See Fed. R.
App. P. 4(b)(1)(A)(i).
The one-year statute of limitations in 28 U.S.C. § 2255(f) is not a jurisdictional bar and is
subject to equitable tolling under extraordinary circumstances. Jones v. United States, 689 F.3d
621, 627 (6th Cir. 2012). Equitable tolling requires the petitioner to show that (1) “he has been
pursuing his rights diligently;” and (2) “some extraordinary circumstance stood in his way and
prevented timely filing.” Id. Additionally, a credible showing of actual innocence will allow a
petitioner to overcome the statute of limitations, rather than provide him an excuse for the late
filing. Yousafzai v. United States, No. 17-1071, 2017 WL 3185189, at *2 (6th Cir. June 7, 2017)
(citing Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005)).
2. Petitioner’s Claims are Untimely
Petitioner, here, did not take a timely direct appeal. His conviction therefore became
final on September 18, 2012, which was fourteen days after entry of the amended judgment on
September 4, 2012. The § 2255 limitations period began to run at that time and expired one year
later, on September 18, 2013.
As noted, the Petition in this case was filed on May 20, 2014, and the Amended Petition
on April 21, 2015. Petitioner’s claims are therefore untimely. Cole does not argue equitable
tolling to excuse his late filing or actual innocence to overcome it. Instead, he contends that his
claims are, in fact, timely because his Motion for Transcripts, which he filed in his criminal case
within the limitations period, should be construed as a § 2255 motion. The argument is rejected.
Rule 2(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts, provides that a § 2255 petition must:
(1) specify all the grounds for relief available to the moving party;
(2) state the facts supporting in each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the movant or by a person
authorized to sign it by the movant.
In United States v. Redding, 2011 WL 2078954, *1 (E.D. Mich. May 25, 2011), the
petitioner requested that the court construe his motion “to compel his counsel to produce a copy
of his file” as a “motion seeking relief under §2255.” Id. The motion to compel stated that the
petitioner had “‘learned of potential government misconduct and possible ineffective assistance
of counsel,’ and that [the petitioner was] . . . ‘in the process of preparing a motion under 28
U.S.C. § 2255.’” Id. The motion “further assert[ed] that [the petitioner] need[ed] access to the
file maintained by his trial counsel in order to ‘properly prepare and support his . . . claims.’” Id.
The court concluded that the motion to compel was not a § 2255 petition. The motion did not
“identify any facts or allegations that might support any . . . award of relief,” and the petitioner’s
“mere promises of forthcoming claims or arguments d[id] not qualify as viable requests for relief
under 28 U.S.C. § 2255.” Id. See also Gregory v. Bassett, No. 3:07-CV-790, 2009 WL 455267,
at *2 (E.D. Va. Feb. 23, 2009) (“Courts may construe a motion for extension of time as a habeas
petition provided the motion contains sufficient allegations supporting the claim for relief.”).
Here, as Respondent points out, Petitioner’s motion is simply a request for sentencing
transcripts at the government’s expense. Like the motion to compel in Redding, the motion here
does not contain factual allegations in support of a claim, as required by Rule 2(b)(2), but merely
promises a forthcoming claim. (See Mo. Trans., Cr. Case, ECF No. 45 at 2) (“Defendant . . .
needs [the transcripts] to file a proper motion for relief pursuant to 18 U.S.C. § 3742 and
§ 2255.”). See Redding, 2011 WL 2078954, *1; see also Ramirez v. United States, 461 F. Supp.
2d 439, 441 (E.D. Va. 2006) (holding that petitioner’s motion for extension of time to file a
§ 2255 petition was not a § 2255 petition, where it “allege[d] little beyond forecasting that a
forthcoming § 2255 petition will contain five grounds for relief”). Cole’s motion also does not
“state the relief requested,” as Rule 2(b) requires.
Accordingly, even under a liberal construction, the Motion for Transcripts is not a § 2255
petition. See Magdaleno v. United States, No. 7:06-CR-00703-GRA, 2009 WL 4432577, at *4
(D.S.C. Nov. 25, 2009) (liberally construed, petitioner’s letters did not constitute habeas
petitions; they “utterly fail[ed] to comply with the Rules Governing § 2255 Proceedings [in that
they] . . . fail[ed] to clearly specify the grounds available for relief or to adequately state the facts
supporting each ground”), aff’d sub nom United States v. Magdaleno, 372 F. App’x 372 (4th Cir.
Even if the Court were to construe the Motion for Transcripts as a § 2255 petition, none
of the claims presented in the Amended Petition relate back to that earlier filing. Federal Rule of
Civil Procedure 15(c)(1) “creates an exception” to the AEDPA’s one-year limitation period. Hill
v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016). Rule 15(c)(1) provides, in pertinent part, that
“[a]n amendment to a pleading relates back to the date of the original pleading when . . . 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.” Fed. R. Civ. P. 15(c)(1)(B). Accordingly,
“when a prisoner files an original [habeas] petition within the one-year deadline, and later
presents new claims in an amended petition filed after the deadline passes, the new claims relate
back to the date of the original petition if the new claims share a ‘common core of operative
facts’ with the original petition.” Cowan v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011) (quoting
Mayle v. Felix, 545 U.S. 644, 650 (2005)).
Because the central inquiry is whether the original claim and the new claim arise from the
same core of operative facts, a conclusory original claim, unaccompanied by any factual support,
may preclude relation back. See Hill, 842 F.3d at 924. In Hill, the petitioner sought to amend
his petition after the limitations period expired. The amendment asserted a claim under Brady v.
Maryland, 373 U.S. 83 (1963), and contained specific factual allegations about the evidence
purportedly suppressed by the prosecution. In contrast, the petitioner’s original claim, which
was brought in a timely-filed petition, was a mere conclusory allegation of a Brady violation.
The Sixth Circuit held that the new claim did not relate back to the original claim because the
latter was “bereft of specific fact allegations or evidentiary support.” Hill, 842 F.3d at 924.
Although both claims were labeled as Brady claims, the original claim “merely speculated that
the State had Brady material, nothing more.” Id. It “did not identify, even in general terms, the
nature of any suppressed information believed to be exculpatory or impeaching or how such
suppressed information was material to the defense.” Id. In short, the amended claim did not
relate back to the original claim because the latter “alleged no operative facts out of which the
amended claim could also be deemed to have arisen.” Id. at 925.
Here, assuming that the Motion for Transcripts is a § 2255 petition, the “claim” set forth
therein consists of the sole allegation that there were “sentencing violations as depicted in the
Supreme Court decision[s] in Shepard v. U.S. . . . and Townsend v. Burke, . . . where it is error to
be sentenced based on inaccurate information.” (Mo. Trans., Cr. Case, ECF No. 45 at 2.) The
Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), held that a sentencing court
cannot take account of police reports or complaint applications when inquiring into whether,
“under the [Armed Career Criminal Act, 18 U.S.C. § 924(e)][,] . . . a plea of guilty . . .
necessarily admit[s] elements of [a] generic offense.” Id. at 26. Townsend v. Burke, 334 U.S.
736 (1948), “establishes the principle that the Due Process Clause . . . is violated when a
defendant is sentenced on the basis of materially false information.” Stewart v. Erwin, 503 F.3d
488, 499 (6th Cir. 2007) (citing Townsend, 334 U.S. at 74).
Petitioner, here, was not sentenced under the Armed Career Criminal Act. The Supreme
Court’s decision in Shepard, therefore, provides no apparent support for Petitioner’s challenge to
his sentence. Townsend, however, appears generally applicable to Petitioner’s case. The Court
therefore construes the “claim” set forth in the Motion for Transcripts as a bare allegation that
Cole’s right to due process was violated when he was sentenced based on inaccurate information.
Because this original “claim” is “bereft of specific fact allegations or evidentiary
support,” Hill, 842 F.3d at 924, none of the claims set forth in the Amended Petition can be said
to arise from its (unknown) factual predicate. This is true even of Claim 1 of the Amended
Petition, which alleges that counsel was ineffective for failing to object to the use of “inaccurate
information” at sentencing. Although the original claim and Claim 1 share the broad allegation
about “inaccurate information,” Claim 1 is based on an identifiable set of occurrences or
conduct, specifically, certain witnesses’ hearsay statements and allegedly false reports, while the
original claim does not “identify, even in general terms, the nature of [the] . . . information
believed to be” inaccurate. Id. As in Hill, the original claim here is so sparse that the Court
cannot determine if it arises from the same conduct and occurrences as alleged in the later-filed
claim. See id. at 925; see also Plunk v. Hobbs, No. 5:08-CV-00203 SWW-JWC, 2010 WL
6083828, at *12 (E.D. Ark. Dec. 2, 2010) (where “Petitioner’s timely, initial pro se petition
raised only a broad claim of ineffective-assistance and ‘governmental misconduct,’” it was
“doubtful that” the petition “could provide a basis for relation-back of the expanded factual and
legal allegations in Petitioner's later pro se pleadings, much less the counsel-filed superseding
petition”), report and recommendation adopted, No. 5:08-CV-00203 SWW-JWC, 2011 WL
900037 (E.D. Ark. Mar. 15, 2011).3
In addition, logic alone dictates that Claims 2 through 5 of the Amended Petition do not
arise from the same occurrence as the original claim. Specifically, the claims that counsel failed
to file an appeal (Claim 2), incorrectly predicted Cole’s sentence (Claim 3), had a conflict of
Even if it were timely, Claim 1 would fail on the merits. Petitioner’s counsel did, in
fact, challenge—numerous times—the prosecution’s use of hearsay evidence to establish the
amount of drugs and Cole’s obstruction of justice (Claim 1(a), (b)). (Sent. Hrg. Tr., Cr. Case,
ECF No. 44 at 180-183, 184, 185, 200, 225, 230, 231, 233, 234; ECF No. 50 at 16-17, 103.) See
Goff v. Bagley, 601 F.3d 445, 463 n.7 (6th Cir. 2010) (a habeas claim is without merit where
petitioner’s underlying factual allegation is “belied by the record.”) And even if counsel had not
objected, there was no prejudice; courts may consider hearsay evidence that is relevant to a
Guidelines enhancement where it has “sufficient indicia of reliability to support its probable
accuracy,” which the hearsay evidence at Cole’s sentencing did. United States v. Cureton, 661
F. App’x 369, 382 (6th Cir. 2016) (quoting U.S.S.G. § 6A1.3(a)) and citing United States v.
Robinson, 898 F.2d 1111, 1115 (6th Cir. 1990)).
Counsel also vigorously objected to the officers’ testimonies about statements made by
truck driver Timothy Davis regarding Cole’s involvement with a large truckload of drugs (Claim
1(a)), and about Angela Bass’s statement that Cole requested that she research the addresses of
certain federal officials involved in his case (Claim 1(c)). (See Sent. Hrg. Tr., Cr. Case, ECF No.
50 at 16-17, 20, 111-112, 113-128.) Counsel also conducted an extensive cross-examination of
the officer who testified about Angela Bass’s statements (Claim 1(c)) and of a fellow inmate who
testified about Cole’s threats (Claim 1(d)). (Id., Cr. Case, ECF No. 50 at 113-128; ECF No. 44
interest (Claim 4), and failed to secure for Petitioner’s review a copy of the wire-tap warrants
(Claim 5), are “distinct type[s] of attorney misfeasance” that do not relate back to the original
claim’s concern about “inaccurate information” at sentencing. Washington v. United States, No.
2:05-CV-160, 2006 WL 1321024, at *7 (S.D. Ohio May 15, 2006) (“‘[A] petitioner does not
satisfy the Rule 15 ‘relation back’ standard merely by raising some type of ineffective assistance
in the original petition, and then amending the petition to assert another ineffective assistance
claim based upon an entirely distinct type of attorney misfeasance.’”) (quoting United States v.
Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (footnote omitted)); see also Watkins v. Deangelo-Kipp,
854 F.3d 846, 849-50 (6th Cir. 2017) (supplemental claim that trial counsel was ineffective in
failing to secure psychiatric evaluation did not relate back to original petition which asserted a
different form of attorney ineffective assistance).
In summary, the Court determines that the Motion for Transcripts is not a § 2255 petition,
and that, even if it were, none of the claims set forth in the Amended Petition relate back to that
earlier motion. As Petitioner has not asserted equitable tolling to excuse the late filing, or actual
innocence to overcome it, the Amended Petition is DISMISSED as untimely.
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253 (c)(2) & (3). A substantial showing is made when the petitioner
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). If the district court rejects a
claim on a procedural ground, the petitioner must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right, and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 478.
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
dismiss the claims as untimely. Because any appeal by Cole does not deserve attention, the
Court DENIES a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.4
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: August 10, 2017.
If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing
fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit
Court of Appeals within thirty days.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?