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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:94-cr-01009-MP-AK

ALBERT THOMAS MADRID,

Defendant.

________________________________/

O R D E R

This matter is before the Court on Doc. 1048, Report and Recommendation of the

Magistrate Judge, which recommends that Defendant’s Motion to Vacate, Doc. 972, be denied,

and that Defendant’s Motion to Amend, Doc. 1029, also be denied. The Magistrate Judge filed

the Report and Recommendation on Friday, February 22, 2008. The parties have been furnished

a copy of the Report and have been afforded an opportunity to file objections. Pursuant to Title

28, United States Code, Section 636(b)(1), this Court must make a de novo review of those

portions to which an objection has been made.

Defendant Madrid has filed proposed amendments that seek to add several claims to the

motion to vacate. Because these amendments are new, unrelated substantive claims, the

Magistrate states that they do not relate back to the original pleading, and recommends that the

amendments be denied as time-barred. In his objections, Defendant argues that the Magistrate

applied the incorrect legal standard, and states that this issue is controlled by Mayle v. Felix, 545

U.S. 644 (2005), which establishes the current test for whether an amended petition relates back. 

Under this test, amendments relate back “[s]o long as the original and amended petitions state

claims that are tied to a common core of operative facts.” Mayle, 545 U.S. at 664. The Supreme

Court in Mayle rejected the Ninth Circuit’s broad interpretation of the terms “conduct,

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Case No: 1:94-cr-01009-MP-AK

transaction, or occurrence,” and cited with approval the Eleventh Circuit case relied upon by the

Magistrate. 

The two claims Defendant seeks to add in his amended motion to vacate allege that

counsel was ineffective by operating under an undisclosed conflict of interest, and by failing to

object to the Court’s definition of the term “withdrawal” in its jury instruction regarding the

statue of limitations. Although these claims share the same legal theory as the claims presented

in the original motion, the Court does not see how they share a common core of operative facts. 

Whether counsel’s alleged conflict prevented him from testifying on the Defendant’s behalf

relies on facts completely independent from those supporting the original ineffective assistance

claims. Similarly, whether counsel was ineffective by failing to object to jury instructions rests

on facts independent from any alleged failure to object to or prevent the introduction of

evidence. The Supreme Court has instructed that a trial alone is too broad a fact to qualify as the

same “conduct, transaction, or occurrence” to justify relation back, and it appears that the only

common fact shared by the amended and original claims is that the alleged ineffective assistance

occurred during the trial. Therefore, the Court agrees with the Magistrate that the motion to

amend must be denied as barred by the statute of limitations. 

In the motion to vacate, Defendant argues that he is entitled to be re-sentenced pursuant

to Booker, Blakely, and Apprendi. These issues were considered and rejected on appeal, and are

not retroactively applicable to cases on collateral review. Defendant also claims that counsel

rendered ineffective assistance by failing to present factual information and controlling legal

authority that would have excluded the admission of Appendix A into evidence. As the

Magistrate points out, because the Eleventh Circuit concluded that Defendant suffered no

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Case No: 1:94-cr-01009-MP-AK

prejudice from the admission of the document, counsel cannot be deemed ineffective on this

ground. The Court also agrees with the Magistrate that counsel was not ineffective by failing to

object to the admission of evidence of foreign drug importations, or by failing to request limiting

instructions. 

Therefore, having considered the Report and Recommendation, and the objections

thereto, I have determined that it should be adopted. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge is adopted and

incorporated herein.

2. Defendant’s Motion to Amend, Doc. 1029, is DENIED.

3. Defendant’s Motion to Vacate, Doc. 972, is DENIED.

DONE AND ORDERED this 11th day of March, 2008

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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