Ingram v. Buckingham Corr. Center
Filing
32
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 5/5/11. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
KEVIN D. INGRAM,
Petitioner,
v.
Civil Action No. 3:09CV831
BUCKINGHAM CORRECTIONAL CENTER,
Respondent.
MEMORANDUM OPINION
Kevin D. Ingram ("Ingram"), a Virginia prisoner, filed this petition for a writ of habeas
corpus challenging his convictions in the Circuit Court for Lunenburg County ("Circuit Court")
for two counts of assault and battery of a police officer, unlawful bodily injury of a police officer,
destruction of property, obstruction ofjustice, resisting arrest, and concealing merchandise. By
Memorandum Opinion and Order entered on March 4, 2011, the Court denied Ingram's § 2254
Petition and two motions by Ingram to amend that petition. On March 7, 2011, the Court
received from Ingram a "MOTION TO AMEND OR ALTER PETITION AND BRIEF"
(hereinafter "March 7, 2011 Motion to Amend"). On April 4, 2011, the Court received from
Ingram a motion requesting relief under Federal Rule of Civil Procedure 52(b) (hereinafter "Rule
52(b) Motion").
I. March 7,2011 Motion To Amend
The March 7, 2011 Motion to Amend offers additional procedural and substantive
arguments in support of the claims the Court dismissed in its March 4,2011 Memorandum
Opinion and Order. Additionally, Ingram raises one new claim for relief:
Counsel was deficient
for not objecting when the prosecutor breached the original plea agreement. (March 7,2011
Mot. Amend 2.) Leave to amend is appropriately denied where the amendment would be futile.
See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000). That is the case here. Ingram's
procedural and substantive arguments in support of the claims raised in his § 2254 Petition do
not provide a viable basis for relief for the reasons set forth in the Court's March 4,2011
Memorandum Opinion. Furthermore, as explained below, to the extent Ingram seeks to amend
his § 2254 Petition to add a claim that counsel was deficient for not objecting when the
prosecutor breached the original plea agreement, such a claim is barred by the one-year statute of
limitations for petitions under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d).
As the Court previously explained, "363 days of the limitation period had elapsed before
Ingram filed his federal habeas petition" on December 20, 2009. Ingram v. Buckingham Corr.
Or., No. 3:09CV831, 2011 WL 836826, at *7 & n.6 (E.D. Va. Mar. 4, 2011). For purposes of
the statute of limitations, Ingram's March 7, 2011 Motion to Amend was filed on March 1, 2011,
the date that Ingram represents he placed the motion in the prison mail system. See Houston v.
Lack, 487 U.S. 266, 276 (1988). By that date, another 436 days of the limitation period had
elapsed. Thus, the new claim in the March 7, 2011 Motion to Amend is barred by the statute of
limitations unless it relates back to the claims in his original § 2254 petition, see Pittman, 209
F.3d at 317, or Ingram is entitled to equitable tolling, see United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004) (quoting Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003)). Ingram fails to
demonstrate that either of these doctrines apply.
An amended claim "does not relate back (and thereby escape [§ 2244's] one-year time
limit) 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 (2005). In this
regard, it is not sufficient that the new claim simply has the same form as the original claims if
the new claim "arises out of wholly different conduct." Pittman, 209 F.3d at 318. Thus, "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." United
States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) {citing Davenport v. United States, 217 F.3d
1341, 1346 (1 lth Cir.2000); United States v. Duffus, 174 F.3d 333, 337 (3d Cir.1999)). In his
original federal habeas petition, Ingrain did not raise any claims pertaining to counsel's failure to
object to a breach of the plea agreement. Thus, Ingram's new claim, which raises such
allegations, does not relate back to Ingram's original claims because the new claim "arise[s] from
separate occurrences of'both time and type.'" Pittman, 209 F.3d at 318 (quoting United States
v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)); see McLean v. United States, No. 04-13534,
2005 WL 2172198, at *2 (11th Cir. Sept. 8, 2005).
Furthermore, Ingram is not entitled to equitable tolling. See Holland v. Florida, 130
S. Ct. 2549, 2562 (2010) ( "[A] 'petitioner' is 'entitled to equitable tolling' only if he shows
'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way' and prevented timely filing." (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005))). The record does not suggest that any extraordinary circumstance prevented Ingram
from including his new claim in his original federal habeas petition. Moreover, Ingram's lengthy
delay in seeking to amend his § 2254 petition refutes the notion that Ingram acted with the
requisite diligence. Accordingly, Ingram's March 7,2011 Motion to Amend (Docket No. 26)
will be DENIED.
II. Rule 52(b) Motion
Rule 52(b) provides, "On a party's motion filed no later than 28 days after the entry of
judgment, the court may amend its findings~or make additional findings~and may amend the
judgment accordingly. The motion may accompany a motion for a new trial under Rule 59."
Fed. R. Civ. P. 52(b). "The findings referred to in Rule 52(b), however, are only those judicial
findings made '[i]n an action tried on the facts without a jury or with an advisory jury.'" Hurst v.
State Farm Mut. Auto. Ins. Co., No. 7:05CV00776, 2008 WL 4974786, at *2 (W.D. Va. Nov. 21,
2008) (alteration in original) (quoting Fed. R. Civ. P. 52 (a)(l)). "Rule 52(b) is a trial rule that is
not applicable in a summary judgment proceeding" or on a motion to dismiss in a habeas
proceeding. Orem v. Rephann, 523 F.3d 442,451 n.2 (4th Cir. 2008) (Shedd, J., concurring).
Nevertheless, "a motion erroneously filed under Rule 52(b) may be treated as a Rule 59(e)
motion to alter or amend." Id. (citing St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d
336, 339 (5th Cir. 1997)).
"[Reconsideration of a judgment after its entry is an extraordinary remedy which should
be used sparingly." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)
(internal quotation marks omitted).
Relief under Rule 59(e) is appropriate "(1) to accommodate
an intervening change in controlling law; (2) to account for new evidence not available at trial; or
(3) to correct a clear error of law or prevent manifest injustice." Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993) (citing Weyerhaeuser Corp. v. Koppers Co., Ill F. Supp. 1406, 1419
(D. Md. 1991); Atkins v. Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D. Miss. 1990)).
Ingram fails to satisfy any of the circumstances for granting Rule 59(e) relief. Ingram merely
asks the Court to revisit the arguments he previously offered in opposition to Respondent's
Motion to Dismiss. See Pac. Ins. Co., 148 F.3d at 403 ("Rule 59(e) motion may not be used to
relitigate old matters, or to raise arguments or present evidence that could have been raised prior
to the entry ofjudgment." Id. {quoting 11 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2810.1 (2d ed. 1995)). Accordingly, Ingram's Rule 52(b) Motion
(Docket No. 30) will be DENIED.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(l)(A). A COA will not issue
unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "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.'" Slack v.
McDanieU 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
No law or evidence suggests that Ingram is entitled to further consideration in this matter. A
certificate of appealability will be DENIED.
An appropriate Order shall issue.
Date: £~5-lI
Richmond, Virginia
hi
James R. Spencer
Chief United States District Judge
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