United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
COLIN H. LINDSAY, Magistrate Judge.
On May 6, 2014, Senior District Court Judge Charles R. Simpson referred this matter to Magistrate Judge James D. Moyer for "rulings on all non-dispositive motions... and for findings of fact and recommendations on any dispositive matter." (DN 433.) On December 31, 2014, this matter was reassigned from Magistrate Judge Moyer to the undersigned Magistrate Judge. (DN 461.) On February 5, 2015, petitioner Toree Sims filed what is termed a "Motion to Alter and/or Amend Judgment" ("Motion to Amend") (DN 464). Although termed as a motion to alter or amend judgment, the content actually reveals that he is seeking permission to amend his petition filed pursuant to 28 U.S.C. § 2255 ("2255 Petition"). On February 23, 2015, the United States of America ("USA") filed a response to the Motion to Amend. (DN 468.) On March 16, 2015, Sims filed a reply. (DN 469.) Thus, the Motion to Amend (DN 464) is ripe for review.
On July 21, 2011, Sims was found guilty of conspiracy to possess with intent to distribute and distribution of cocaine. (DN 384.) Sims was sentenced to 360 months in prison and ten years of supervised release. ( Id. at 3-4.) On April 14, 2014, Sims filed his 2255 Petition, claiming his original conviction should be vacated or set aside due to ineffective assistance of counsel, among other things. (DN 428, pp. 1-12.) On June 5, 2014, the USA filed a response to the 2255 Petition. (DN 446.) On August 22, 2014, Sims filed what is effectively a reply to the USA's response to his 2255 Petition. (DN 453.) On September 15, 2014, Sims filed a letter asking the Court to disregard his reply. (DN 454.) On October 31, 2014, Sims filed another reply to the USA's response to his 2255 Petition. (DN 455.) At that point, Sims's 2255 Petition became ripe for review.
Although Sims's 2255 Petition has been ripe for review for over three months, on February 5, 2015, he filed the Motion to Amend (DN 464), seeking leave to amend his 2255 Petition. This is not the first time Sims has asked for and received permission to amend his 2255 Petition. On July 28, 2014, Sims filed a motion requesting an extension of time to file his reply to the USA's response to his 2255 Petition. (DN 447.) On August 1, 2014, the Court granted Sims's motion, giving him until August 27, 2014 to file his reply. (DN 449.) On August 7, 2014, Sims filed another motion requesting yet another extension of time to file his reply and to also amend his 2255 Petition. (DN 450.) The USA objected to Sims's motion to the extent it sought additional time to supplement his 2255 Petition. (DN 451.) On August 18, 2014, the Court granted Sims's motion, permitting him to file a reply or supplement his 2255 Petition by November 3, 2014. (DN 452 ["The petitioner shall file a reply or supplement no later than November 3, 2014."]) On August 22, 2014, Sims filed what is effectively a reply to the USA's response to his 2255 Petition. (DN 453.) On September 15, 2014, Sims sent a letter to the Court, asking it to disregard his filed reply. (DN 454.) On October 31, 2014, Sims filed another reply to his 2255 Petition. (DN 455.) It was in this reply (DN 455) that Sims was given the opportunity to amend his 2255 Petition. ( See DN 452.)
In the Motion to Amend, Sims seeks to add two new claims for ineffective assistance of counsel to his 2255 Petition. Specifically, Sims takes issue with his trial attorney's failure to (1) investigate why Special Agent Scott Wenther stated that the ten kilograms seized from Charles Parson was headed to Atlanta, Georgia instead of Louisville, Kentucky; and (2) move the District Court "to suppress all reference to Sims being a member of the notorious street-gang known as the Black Mafia Family' (BMF')." (DN 464, pp. 2-5.) The USA argues that Sims has not provided a legal basis for the Court to allow him to supplement his 2255 Petition a second time. The USA further argues that the Motion to Amend raises no new issues.
Rule 15 of the Federal Rules of Civil Procedure governs a motion for leave to amend a petition for writ of habeas corpus under 28 U.S.C. § 2255. 28 U.S.C. § 2242 (stating that an application for a writ of habeas corpus "may be amended or supplemented as provided in the rules of procedure applicable to civil actions"); Hodges v. Rose, 570 F.2d 643, 649 (6th Cir. 1978) ("Amendment of a petition for habeas corpus is governed by the rules of procedure applicable to civil actions.'") (quoting 28 U.S.C. § 2242). Rule 15(a)(1) permits a party to amend its pleading once as a matter of course within "(A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed.R.Civ.P. 15 (a)(1)(A)-(B). In all other cases, "a party may amend its pleading only with the opposing party's consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Rule 15(a)(1) does not apply in this case as more than twenty-one days have passed since the service of the USA's response to the 2255 Petition. Thus, Rule 15(a)(2) governs the amendment of Sims's 2255 Petition.
The USA does not consent to Sims amending his 2255 Petition. Therefore, Sims may only amend his 2255 Petition with the Court's permission. The language of Rule 15(a)(2) commands the Court to freely grant permission to amend when justice requires. Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995). Additionally, the Sixth Circuit has stated that Rule 15(a)(2) sets forth a "liberal policy of permitting amendments to insure the determination of claims on their merits." Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987). The Court's denial of a motion for leave to amend is reviewed for abuse of discretion. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998).
In evaluating the interests of justice, the Court should consider several factors, including "[u]ndue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment." Coe, 161 F.3d at 341 (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)) (internal quotation marks omitted).
With respect to undue delay, the Court finds that Sims has delayed filing his Motion to Amend. Sims filed the present Motion to Amend on February 5, 2015, almost ten months after his 2255 Petition was filed, and about three months after the 2255 Petition became ripe for review. Nonetheless, the Sixth Circuit has found that undue delay alone is not sufficient to deny a motion to amend. Id. at 341-42. Furthermore, there is no evidence of bad faith on Sims's part. Nor does it appear there is a lack of notice to the USA. Sims asserts that he sent two letters to the USA, seeking its consent to the amendment of his 2255 Petition. (DN 464, p. 1.) Between the two letters - and the similarity of the issues raised in the Motion to Amend and the underlying 2255 Petition and accompanying briefs - the Court finds that the USA had reasonable notice of the issues raised in the Motion to Amend. Finally, the USA would likely not be unduly prejudiced by permitting Sims to amend his 2255 Petition. While the USA has an interest in seeing the matter resolved efficiently, unlike Sims, it is obviously not subject to incarceration.
That being said, Sims has already received one opportunity to amend his 2255 Petition. ( See DN 452 [order permitting Sims to supplement his 2255 petition via a reply]; DN 455 [Sims's reply/supplement to the 2255 Petition].) Sims has not justified the delay in seeking permission to once again amend his 2255 Petition other than to state, "It should be readily understandable why a pro-se petitioner who has absolutely no understanding in matters related to procedural law should file a petition that needs to be amended." (DN 464, p. 2.) Nor has Sims stated why he could not have included any necessary amendments in his reply (DN 455) filed on
Furthermore, the USA argues that Sims has not actually raised any new claims in his Motion to Amend. The Court agrees in part. First, Sims argues in the Motion to Amend that his counsel was ineffective because he failed to investigate why Special Agent Wenther's affidavit stated that the ten kilograms seized was headed to Atlanta and not Louisville. (DN 464, pp. 2-4.) Sims has already addressed this issue in the 2255 Petition and supporting briefs. Specifically, in the memorandum supporting his 2255 Petition, Sims claimed that the affidavit of Special Agent Wenther contradicted the testimony of other agents and trial witnesses. (DN 431, pp. 27-32.) Therefore, Sims argued that counsel should have "investigated where the affidavits came from, or who testified to the affidavits." ( Id. at 28.) Additionally, Sims argued that, had counsel properly investigated, he would have had to subpoena Special Agent Wenther as to where Parson was going with the ten kilograms of cocaine. ( Id. at 29.) Finally, Sims argued that, had counsel investigated properly, he could have been able to impeach three key government witnesses. ( Id. at 30.) In the reply in support of his 2255 Petition, Sims also argued that his counsel failed to "investigate the DEA agents whose affidavits stated that the government witness was headed to Atlanta with 10 kilograms when he was stopped by police." (DN 455, p. 15.) The USA addressed this argument in its response to the 2255 Petition. ( See, e.g., DN 446, pp. 8-9 ["Sims's second allegation is that Judah failed to investigate affidavits from Special Agents Scott Wenther and Brian Bester."]) While Sims's arguments in the 2255 Petition and supporting briefs are disjointed, his point is clear - he is claiming his trial attorney should have investigated the facts set forth in Special Agent Wenther's affidavit. Consequently, the Court agrees that Sims has already asserted an ineffective assistance of counsel claim on this basis in his 2255 Petition and supporting briefs. Therefore, the Motion to Amend should be denied as moot to the extent it seeks to add an ineffective assistance of counsel claim based on this theory.
Second, Sims argues in his Motion to Amend that his counsel was ineffective for "failing to move the Court, prior to trial, to suppress all reference" to Sims's membership in the Black Mafia Family. (DN 464, p. 5.) Sims notes that, although this issue standing alone was not raised in the 2255 Petition, the facts supporting it were raised ...