Jones v. USA
Filing
10
MEMORANDUM DECISION denying 7 Petitioner's Motion for Leave to File an Amended Legal Brief and Setting Evidentiary Hearing. Signed by Judge Ted Stewart on 10/04/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
TAMARA JONES,
Petitioner,
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION FOR LEAVE TO FILE AN
AMENDED LEGAL BRIEF AND
SETTING EVIDENTIARY HEARING
vs.
UNITED STATES OF AMERICA,
Civil Case No. 2:09-CV-360 TS
Respondent.
Criminal Case No. 2:05-CR-534 TS
This matter is before the Court for consideration of Petitioner’s Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence. In addition, Petitioner has filed a Motion
seeking leave to file an amended brief in support of her § 2255 Motion. For the reasons
discussed below, the Court will deny Petitioner’s Motion for Leave to File an Amended Legal
Brief, but finds that Petitioner’s original § 2255 Motion requires an evidentiary hearing. The
Court will, therefore, appoint Petitioner counsel and set this matter for an evidentiary hearing on
her claim for ineffective assistance of counsel.
1
I. BACKGROUND
On July 21, 2005, Petitioner was charged with possessing or attempting to posses iodine
knowing or having reasonable cause to believe that it would be used to manufacture
methamphetamine. Petitioner filed a motion to suppress, seeking to suppress statements she
made to police. The Court held a hearing on the Motion on November 28, 2005. Petitioner did
not testify at that hearing. The Court denied Petitioner’s motion to suppress, finding that she was
not in custody at the time of her questioning and, therefore, Miranda did not apply.
Petitioner then proceeded to a jury trial, where she was found guilty. On May 31, 2007,
Petitioner was sentenced to 97 months imprisonment. Petitioner filed a direct appeal,
challenging the Court’s ruling on her motion to suppress. On April 23, 2008, the Tenth Circuit
Court of Appeals affirmed the Court’s ruling.1 Petitioner timely filed her § 2255 Motion on
April 23, 2009.
II. DISCUSSION
A.
MOTION FOR LEAVE TO FILE
On November 30, 2009, Petitioner filed a Motion for Leave to File an Amended Legal
Brief. In her Motion, Petitioner seeks to amend her original § 2255 Motion to include a new
claim for ineffective assistance of counsel. Specifically, Petitioner alleges that her counsel was
ineffective for failing to file a motion to dismiss her indictment due to violations of the Speedy
Trial Act.2
1
United States v. Jones, 523 F.3d 1235 (10th Cir. 2008).
2
18 U.S.C. § 3161.
2
Petitioner’s Motion for Leave to File an Amended Legal Brief was filed after the one-year
limitations period set out in § 2255(f) expired. Petitioner’s Motion is untimely unless the date of
its filing relates back to the date of her original petition pursuant to Fed.R.Civ.P. 15(c).3 The
Tenth Circuit has held that an otherwise untimely amendment to a § 2255 Motion
“which, by way of additional facts, clarifies or amplifies a claim or theory in the
[original motion] may, in the District Court’s discretion, relate back to the date of
[the original motion] if and only if the [original motion] was timely filed and the
proposed amendment does not seek to add a new claim or to insert a new theory
into the case.”4
The Court finds that Petitioner’s additional allegation of ineffective assistance does not
relate back to her original § 2255 Motion. While both her original § 2255 Motion and her new
allegation concern ineffective assistance of counsel, Petitioner’s new claim is “totally separate
and distinct ‘in both time and type’ from those raised in [her] original motion.”5 Petitioner’s
original § 2255 Motion asserts that counsel was ineffective for failing to inform Petitioner of her
ability to testify at a suppression hearing and making a unilateral decision that Petitioner would
not testify at that hearing, while Petitioner’s new allegation centers around counsel’s alleged
failure to file a motion to dismiss based on violations of the Speedy Trial Act. Because of the
differences in these claims, the Court finds that Petitioner’s new claim cannot relate back to the
filing of her original § 2255 Motion and is untimely.
3
See United States v. Espinoza-Saenz, 235 F.3d 501, 503–05 (10th Cir. 2000).
4
Id. at 505 (quoting United States v. Thomas, 221 F.3d 430, 431 (3d Cir. 2000)).
5
Id. (quoting United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)).
3
As Petitioner’s amendment is untimely and does not relate back to her original § 2255
Motion, the Court construes it as a second or successive petition. Having so construed
Petitioner’s Motion, the Court must decide whether it is in the interest of justice to transfer said
Motion. “Before a federal prisoner may file a second or successive motion under § 2255, the
prisoner must first obtain an order from the appropriate court of appeals authorizing the district
court to consider the motion.”6 “A district court does not have jurisdiction to address the merits
of a second or successive § 2255 . . . claim until [the appropriate court of appeals] has granted the
required authorization.”7 However, before transferring a second or successive motion under
§ 2255 to the appropriate court of appeals for authorization, the Court must consider whether it is
in the interest of justice to do so.8
The Tenth Circuit has delineated the factors a Court should consider in whether it is in
the interest of justice to transfer a second or successive § 2255 motion. These factors include:
whether the claims would be time barred if filed anew in the proper forum,
whether the claims are likely to have merit, and whether the claims were filed in
good faith or if, on the other hand, it was clear at the time of the filing the court
lacked the requisite jurisdiction.9
Considering these factors, the Court finds that it is not in the interest of justice to transfer
Petitioner’s new claim. Therefore, the Court will not consider Petitioner’s new allegation of
ineffective assistance and will deny her Motion for Leave to File an Amended Legal Brief.
6
In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008).
7
Id. at 1251.
8
See 28 U.S.C. § 1631.
9
In re Cline, 531 F.3d at 1251.
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B.
ORIGINAL § 2255 MOTION
28 U.S.C. § 2255(b) provides:
Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect thereto.
To determine whether an evidentiary hearing is necessary, the Court must determine
whether Petitioner’s allegations, if proved, would entitle her to relief. Petitioner’s original §
2255 Motion alleges that her counsel was ineffective by failing to inform her that it was her
decision to testify at the motion to suppress hearing and by making a unilateral decision that she
would not testify at that hearing.
“To demonstrate ineffectiveness of counsel, [Petitioner] must generally show that
counsel’s performance fell below an objective standard of reasonableness, and that counsel’s
deficient performance was prejudicial.”10
The Court finds that Petitioner’s original § 2255 Motion contains allegations which, if
proved, would entitle her to relief. A criminal defendant has the right to testify in her own
defense.11 The Supreme Court has made clear that this right “reaches beyond the criminal
trial.”12 “The right of the accused to testify is a personal right that only the accused can waive;
10
United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
11
Rock v. Arkansas, 483 U.S. 44, 49 (1987).
12
Id. at 51 n.9; see also Rheinert v. Larkins, 379 F.3d 76, 95 (3d Cir. 2004) (considering
petitioner’s argument that counsel was ineffective for failing to inform him of his right to testify
at the suppression hearing); United States v. Rashaad, 249 F. App’x 972 (4th Cir. 2007) (same).
5
defense counsel cannot waive the right as a matter of trial strategy without the defendant's
consent.”13 Any waiver of the right to testify in one’s own defense must be “voluntary, knowing,
and intelligent with an understanding of the consequences of such waiver.”14
In her Motion, Petitioner alleges that she was not informed of her right to testify at her
suppression hearing, that she informed her counsel that she wanted to testify on her behalf, but
that counsel made the unilateral decision to not call her to the stand. Petitioner goes on to
provide a detailed factual statement of what she would have testified to if she would have been
permitted to testify at the suppression hearing. The information provided by Petitioner goes to
the key facts at issue in Petitioner’s motion to suppress and her proffered evidence directly
contradicts much of the evidence presented by the government at the suppression hearing.
Based on these things, the Court finds that Petitioner’s claims, if proved, would entitle
her to relief and the Court is unable to conclusively find that she is not entitled to relief. The
government makes a number of arguments in asserting that Petitioner’s Motion should be denied.
However, many of these arguments go beyond the records of this case and, even considering
them, the Court cannot conclusively find that Petitioner is not entitled to relief. Therefore, the
Court finds an evidentiary hearing is necessary in this matter.
13
United States v. Hershberger, 940 F.2d 671, at *2 (10th Cir. 1991).
14
Harvey v. Shillinger, 76 F.3d 1528, 1536 (10th Cir. 1996).
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III. CONCLUSION
Based upon the above, it is hereby
ORDERED that Petitioner’s Motion for Leave to File an Amended Legal Brief (Docket No. 7 in
Case No. 2:09-CV-360 TS) is DENIED. It is further
ORDERED that an evidentiary hearing is set for December 15, 2011, at 2:00 p.m. It is
further
ORDERED that the Court, by separate order, will appoint counsel pursuant to Rule 8(c)
of the Rules Governing Section 2255 Proceedings for the United States District Courts.
DATED October 4, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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