Opinion
04 Civ. 293/04 Civ. 5074/95 Cr. 942 (DAB).
May 12, 2005
MEMORANDUM AND ORDER
On April 4, 2005, the United States Court of Appeals for the Second Circuit issued a mandate (1) vacating the October 12, 2004 Order of United States District Judge Michael Mukasey transferring 04 Civ. 5074 (MBM) to the Second Circuit, and (2) remanding such action to the District Court with instructions to construe Petitioner Oscar Dominguez's application to file a second motion under 28 U.S.C. § 2255 as a motion to amend the § 2255 motion he filed in 04 Civ. 293 (DAB). Dominguez v. United States, No. 04-5952, mandate (2d Cir. Jan. 19, 2005). Thus, presently before this Court is Petitioner's Motion to Amend his initial § 2255 motion filed in 04 Civ. 293 (DAB). For the reasons stated below, Petitioner's motion to amend his original § 2255 motion is DENIED.
I. BACKGROUND
On August 16, 1996, Petitioner pled guilty to one count of racketeering in violation of 18 U.S.C. § 1962, after which, on May 3, 1999, this Court sentenced him to time-served and three years of supervised release upon the applicable standard conditions. Thereafter, on March 29, 2000, the Court, in response to two positive toxicologies collected from Petitioner on November 16, 1999 and February 29, 2000, modified his supervised release to include drug testing and treatment as directed by the United States Department of Probation. On March 25, 2002, just over a month before his supervised release term was set to expire, the Probation Department petitioned the Court to extend Petitioner's term of supervised release for one year with the additional condition that he undergo mental health counseling. (See Request for Modifying the Conditions or Term of Supervision with the Consent of the Offender, dated March 25, 2002, at 3). Attached to the Probation Department's Request was a written waiver, signed and dated by Petitioner on March 19, 2002, in which Petitioner (1) waived his right to a hearing and assistance of counsel on the issue of extending the term of his supervised release and (2) consented to the one-year extension of his supervised release term. (See Waiver of Hearing to Extend Term of Supervision, dated March 19, 2002). This request was granted and ordered by the Court on April 3, 2002.Thereafter, on June 25, 2002, the Probation Department, noting that Petitioner had continued to test positive for cocaine and for marijuana, and had on several occasions refused to report for random drug testing as directed by the Probation Department, recommended that Petitioner's supervised release be revoked. (See Request for Summons, dated June 25, 2002, at 3-4, 6; Petition for Summons, dated June 27, 2002, at 1). The Court issued the summons on July 2, 2002, and on October 28, 2002, Petitioner, appearing before this Court, admitted to all three of the supervised release violations specified by the Probation Department, after which the Court revoked his supervised release and sentenced him to a term of imprisonment of thirty-six months. (Transcript of Proceedings of October, 28, 2002 [Tr.] at 3-8).
Thereafter, the Petitioner appealed his sentence to the United States Court of Appeals for the Second Circuit, contending that it was unlawful because it was imposed for a supervised release violation that took place after his original three-year supervised release term expired on May 3, 2002. Petitioner in turn argued that this Court's April 3, 2002, Order extending his supervised release for an additional year was invalid because it was issued without affording him a hearing and assistance of counsel as required by Fed.R.Crim.P. 32.1. Specifically, Petitioner claimed that his signed waiver of his hearing and assistance of counsel rights was not knowing and voluntary since it was written in English, a language in which he is not fluent. The Second Circuit, in a summary order, rejected Petitioner's arguments and affirmed the judgment of this Court. See United States v. Dominguez, No. 02-1668, 2003 WL 22490371 (2d Cir. Nov. 4, 2003) (unpublished opinion).
On January 14, 2004, Petitioner filed 04 Civ. 293 (DAB) seeking to vacate or set aside his sentence under 28 U.S.C. § 2255. Petitioner raised five grounds for vacating the Court's revocation of his supervised release and imposition of a 36-month prison sentence: (1) the Probation Department's obtaining of Petitioner's waiver of hearing on the extension of his supervised release imposed a sentence on Petitioner and thus intruded upon the exclusive province of the judiciary; (2) the waiver of his hearing and assistance of counsel rights was not knowing and voluntary because Petitioner signed it without being informed of the Probation Department's "true intentions" in seeking the extension, i.e., to bide time to seek revocation of Petitioner's supervised release; (3) seeking the extension was a bad-faith effort on the part of the Probation Department to prevent Petitioner's supervised release term from expiring before the Probation Department could seek to revoke his supervised release and imprison him; (4) the Court violated Petitioner's Due Process rights and Fed.R.Crim.P. 32(a)(1) by extending his supervised release term without affording him or his attorney the right to be heard on the issue and without adjudicating him guilty of any wrongdoing; and (5) the Probation Department, by obtaining Petitioner's waiver on its own initiative instead of at the direction of the Court, exceeded its statutory authority by engaging in the practice of law.
Subsequently, on May 20, 2004, Petitioner filed a Prayer for the Dismissal of the Erroneously Imposed Sentence and the Granting of Summary Judgment under Rule 56 ("Summary Judgment Motion"). In this Summary Judgment Motion Petitioner argued that the revocation of his supervised release and 36-month prison sentence violated his right to "equal protection of the laws" under the Fourteenth Amendment. He also reiterated the claim from his initial § 2255 motion that the supervised release revocation and 36-month prison terms essentially amounted to a sentence imposed by the Probation Department instead of the Court, in violation of 18 U.S.C. § 3553. (Summary Judgment Motion at 2-3).
On June 2, 2004, this Court instructed the Pro Se Office to treat the Summary Judgment Motion as a § 2255 motion that Petitioner could either pursue or withdraw, pursuant to the Second Circuit's holding in Adams v. United States, 155 F.3d 582 (2d Cir. 1998) (per curiam). The Court issued this directive with the understanding that, if Petitioner chose to pursue this submission as a § 2255 motion, the Court could then choose either to construe it as a motion requesting leave to amend his original § 2255 motion or consolidate it with Petitioner's original § 2255 motion. (Id. at 2). Thereafter, on June 28, 2004, Judge Mukasey issued an order officially construing Petitioner's May 20, 2004 submission as a new § 2255 motion with a separate docket number, 04 Civ. 5074 (MBM), and directing Petitioner to notify Judge Mukasey within 60 days whether he intended to pursue or withdraw such motion. (Order of Judge Mukasey in Dominguez v. United States, 04 Civ. 5074 (MBM), dated June 28, 2004, at 2-3).
The Second Circuit held in Adams that "district courts should not recharacterize a motion purportedly made under some other rule as a motion made under § 2255 unless (a) the movant, with knowledge of the potential adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or (b) the court finds that, notwithstanding its designation, the motion should be considered as made under § 2255 because of the nature of the relief sought, and offers the movant the opportunity to withdraw the motion rather than have it so recharacterized." 155 F.3d at 584.
On July 12, 2004, this Court summarily dismissed 04 Civ. 293 (DAB), holding that Petitioner had procedurally defaulted on the five claims in his original § 2255 motion by failing to raise any of them on direct appeal and that Petitioner provided no cause for such default. On July 15, 2004, Petitioner filed a Motion in Compliance with Judge Mukasey's June 28, 2004 Order, in which he requested that his second § 2255 motion, 04 Civ. 5074 (MBM), be consolidated with his original motion, 04 Civ. 293 (DAB). (Motion to Consolidate at 1). In addition, Petitioner asserted yet another ground for invalidating his supervised release revocation and 36-month prison sentence, arguing that his waiver of hearing on the extension of his supervised release term was not "voluntary and intelligent" because the Probation Department did not "fully apprise him of his rights and the consequences of such waiver and because he was under the influence of cocaine and marijuana when he signed it. (Id. at 3-4). Petitioner did not specify whether he wanted to withdraw his May 20, 2004 submission or pursue it as a § 2255 motion, but instead argued that such submission should be treated as a motion for summary judgment under F.R.C.P. 56. (Id. at 2).
On December 21, 2004, Petitioner filed a Motion to Vacate the Court's July 12, 2004 Order pursuant to Fed.R.Civ.P. 60(b)(1), which the Court denied by Order of January 20, 2005. Petitioner then moved pursuant to Fed.R.Civ.P.59(e) and Local Civil Rule 6.3 for the Court to reconsider its Order denying his Rule 60(b) motion, but the Court also denied this subsequent motion and warned Petitioner that if he continued to file motions in 04 Civ. 293, he could be "subject to sanctions pursuant to Rule 11." (Order, dated February 22, 2005, at 4).
By order of August 20, 2004, Judge Mukasey denied Petitioner's motion to consolidate as moot in light of this Court's summary dismissal of 04 Civ. 293 (DAB) and dismissed 04 Civ. 5074 (MBM) because Petitioner's Motion to Consolidate did not comply with the June 28, 2004 Order requiring him to specify whether he wished to withdraw his May 20, 2004 submission or pursue it as a § 2255 motion. (Order of Judge Mukasey inDominguez, 04 Civ. 5074 (MBM), dated August 20, 2004, at 2-3). On September 7, 2004, Petitioner filed a Motion for Reconsideration of Judge Mukasey's August 20, 2004 Order, in which he argued that he had filed his July 15, 2004 Motion to Consolidate before receiving word of this Court's July 12, 2004 Order summarily dismissing his original § 2255 motion and requested that Judge Mukasey treat his submissions in 04 Civ. 5074 (MBM) as a new § 2255 motion. (Motion to Reconsider, at 1-2). On October 12, 2004, Judge Mukasey issued an order granting Petitioner's Motion for Reconsideration. In his Order, Judge Mukasey reinstated 04 Civ. 5074, designated Petitioner's May 20 and July 15, 2004 submissions as comprising a new § 2255 motion separate from 04 Civ. 293, and transferred the case to the Second Circuit to consider Petitioner's motion for certification of the second § 2255 motion pursuant to 28 U.S.C. § 2244(b)(3)(A). (Order of Judge Mukasey in Dominguez, 04 Civ. 5074 (MBM), dated October 12, 2004, at 4-5).
§ 2244(b)(3)(A) provides that:
[b]efore a second or successive [§ 2255 motion] is filed in the district court, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. §§ 2244(b)(3)(A), 2255.
On October 29, 2004, Petitioner moved for reconsideration of Judge Mukasey's October 12, 2004 Order, asking that the October 12, 2004 Order be stayed and, if this Court chose to reopen 04 Civ. 293, that Judge Mukasey "reorder [04 Civ. 5074] transferred or consolidated with 04 Civ. 293." (See Motion for Reconsideration of the October 12, 2004 Order and Memorandum in Support Thereof, dated October 29, 2004, at 6). However, by Order of December 29, 2004, Judge Mukasey denied this second motion to reconsider. (See Order, dated December 29, 2004, at 4).
On January 19, 2005, the Second Circuit denied "as unnecessary" Petitioner's motion for certification of the second § 2255 motion. (Mandate in Dominguez v. United States, 04-5952 (2d Cir. Jan. 19, 2005)). In doing so, the Second Circuit found that 04 Civ. 5074 (MBM) "was not a second or successive motion within the meaning of 28 U.S.C. §§ 2244 and 2255 because, at the time [P]etitioner filed his second § 2255 motion, [this Court] had not yet ruled on his initial § 2255 motion." (Id.). Thus, the Second Circuit vacated Judge Mukasey's October 12, 2004 Order and remanded 04 Civ. 5074 (MBM) to the district court with instructions to treat it as "a motion to amend the initial § 2255 motion, under Fed.R.Civ.P. 15." (Id.).
The Mandate isssued on April 4, 2005. Thereafter, on April 21, 2005, Judge Mukasey ordered that 04 Civ. 5074 (MBM) be reassigned to this Court pursuant to Rule 4(a) of the Rules Governing § 2255 Proceedings and Rule 11(a) of the Rules of Division of Business Among District Judges. Accordingly, this Court must now determine whether Petitioner may amend his already-dismissed § 2255 motion filed in 04 Civ. 293 (DAB) in the manner set forth in his May 20 and July 15, 2004 submissions filed in 04 Civ. 5074 (MBM).
II. DISCUSSION
It is well-established in this Circuit that a motion to amend a § 2255 motion is analyzed under the standards set forth in Federal Rule of Civil Procedure 15(a) for amendment of pleadings in civil cases. See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (per curiam) (holding that the standard for granting or denying a motion to amend a habeas petition is governed by F.R.C.P. 15); Ching v. United States, 298 F.3d 174, 180 (2d Cir. 2002) (applying Rule 15(a) to motion to amend § 2255 motion). Under Rule 15(a), leave to amend "shall be freely granted when justice so requires." Fed.R.Civ.P. 15(a). However, "a district court may properly deny leave when amendment would be futile." Jones v. New York State Div. Of Military and Naval Affairs, 166 F.3d 45, 50 (2d Cir. 1999) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
In the present case, Petitioner's May 20, and July 15, 2004 submissions in 04 Civ. 5074 would apparently amend his original § 2255 motion in 04 Civ. 293 (DAB) by adding three additional grounds for vacating his revocation of supervised release and 36-month prison sentence. However, like the grounds set forth in his original § 2255 motion, none of these latter grounds were raised on direct appeal, and Petitioner provides no cause for failing to do so. Thus, like the claims in his original § 2255 motion, these latter claims have been procedurally defaulted. In other words, Petitioner's proposed amendments would be futile, and therefore his motion to amend is DENIED.
As discussed in Part I supra, these three additional grounds are: (1) his waiver of hearing on the extension of his supervised release term was not knowing and intelligent because he had not been apprised of his rights prior to signing it, (2) his waiver was not knowing and intelligent because he was under the influence of cocaine and marijuana when he signed it, and (3) the revocation of his supervised release and subsequent prison sentence violated his rights under the Fourteenth Amendment's Equal Protection Clause. (Summary Judgment Motion at 2-3; Motion to Consolidate at 3-4).
The only claim Petitioner raised on direct appeal was that his waiver of hearing was not knowing and voluntary because it was written in English, a language in which he is not fluent.See Dominguez v. United States, 2003 WL 22490371, at * 2.
On February 22, 2005, Petitioner filed yet another submission in 04 Civ. 5074 (MBM), in which he proposes to amend his original § 2255 motion further by adding two ineffective assistance of counsel claims, which would not be procedurally barred even though not raised on direct appeal. (Petitioner's Memorandum of Points and Authorities in Support of Motion for Leave to File an Amended Motion Under 28 U.S.C. § 2255 to Vacate The Conviction, dated February 17, 2005, at 5); see also Massaro v. United States, 538 U.S. 500, 508, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) ("[F]ailure to raise an ineffective assistance of counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255."). However, this submission is clearly not encompassed by the Second Circuit's Order of Remand, which concerned documents filed before January 19, 2005. Moreover, because it was clearly filed after this Court dismissed Petitioner's original § 2255 motion, this submission must be treated as a second § 2255 motion rather than a motion to amend. See Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998) ("Generally, a § 2255 petition is `second or successive' if a prior § 2255 petition, raising claims regarding the same conviction or sentence, has been decided on the merits.") (citation omitted).
III. CONCLUSION
For the foregoing reasons, Petitioner's motion to amend his original § 2255 motion filed in 04 Civ. 293 (DAB) is DENIED. 04 Civ. 293 (DAB) and 04 Civ. 5074 (DAB) are both DISMISSED WITH PREJUDICE. In addition, the Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of Court is DIRECTED not to accept any further submissions from Petitioner in 04 Civ. 293 (DAB) or 04 Civ. 5074 (DAB) and to close the dockets in both of these cases.SO ORDERED.