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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No: 14-20568 

vs Hon. Victoria A. Roberts 

SYED IBRAHIM HUSSAIN, 

 Defendant. 

 / 

OPINION GRANTING GOVERNMENT’S MOTION TO STRIKE (Doc. #86) 

PETITIONER’S REPLY BRIEF (Doc. #85)

After entering a guilty plea, Syed Ibrahim Hussain (“Hussain”) was convicted and 

sentenced on one count of extortion by interstate communication, 18 U.S.C. § 875(b), 

and one count of possession of child pornography, 18 U.S.C. § 2252(a)(5)(B). 

Before the Court is Hussain’s amended petition for a writ of habeas corpus 

(“Amended Petition”) pursuant to 28 U.S.C. § 2255. The Government responded and 

Hussain filed a reply (“Reply”) [Doc. 85], which the Government seeks to strike 

(“Motion”) [Doc. 86]. The Government says that the claims raised in the Reply are timebarred by the statute of limitations for seeking habeas relief. The Court agrees. The 

motion to strike is GRANTED. 

I. Background 

 Hussain’s Amended Petition seeks a writ of habeas corpus for ineffective 

assistance of counsel. Specifically, Hussain contends that his counsel did not explain 

the plea negotiation process to him, causing him to not realize that a “plea offer” 

indicated in an email from the Government would expire. In its response, the 
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Government argues that Hussain’s counsel was not ineffective because the Court had 

ruled that the email did not constitute a plea offer, and that Hussain suffered no 

prejudice. 

 In his Reply, Hussain raises additional claims of his counsel’s alleged 

incompetence, including counsel’s: 1) unwillingness to listen to Hussain’s explanation of 

the facts; 2) adaptation of a strategy to make Hussain look “as culpable as possible” in 

proffer sessions with the Government; 3) failure to “properly investigate the case facts, 

interview potential witnesses, or meet and discuss the proffers” with Hussain before 

they were conducted; 4) failure to present information regarding Hussain’s physiological 

status; and 5) abandonment of the plea negotiation process and communication with 

Hussain. [Doc. 85, Pg. 10-12, 15-16]. As a result of his counsel’s ineffectiveness, 

Hussain says he was offered a plea that was significantly less favorable to him than it 

might have otherwise been. Ultimately, Hussain claims that “irrespective of whether the 

... email was a formal or informal offer, [counsel] was ineffective because he was 

uninformed, unprepared and failed in his basic responsibility to defend [Hussain] and to 

represent his best interests in plea negotiations.” Id. at 21. 

Filed after the one-year statute of limitations on his habeas petitions had expired, 

the Government says that Hussain’s Reply is “really an entirely new § 2255 motion that 

sets forth different claims and arguments than his original § 2255 motion” and is timebarred. [Doc. 86, Pg. 1]. Hussain disagrees and says: 1) new claims are not presented, 

but instead “a clarification or amplification of his initial claim of [ineffective assistance of 

counsel]”; 2) if it does contain new claims, is an amendment that relates back to his 
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original Amended Petition pursuant to Rule 15(c)(1)(B) of the Federal Rules of Civil 

Procedure; and 3) warrants equitable tolling. [Doc. 88, Pg. 7, 10]. 

II. Analysis 

A. New Claims Raised in Reply Brief 

A reply to a response to a habeas petition is not the proper pleading for the 

petitioner to raise additional grounds for relief. Burns v. Lafler, 328 F. Supp. 2d 711, 724 

(E.D. Mich. 2004). “Because it is improper to raise arguments initially in a reply brief, a 

court generally will not consider them.” United States v. Jackson, 2016 WL 8232847, at 

*2 (E.D. Ky. Mar. 9, 2016), report and recommendation adopted, 2016 WL 8243168 

(E.D. Ky. Apr. 1, 2016). “Doing so is procedurally improper at least because it deprives 

the [Government] of the right to address the new claims.” Berlanga v. Winn, 2016 WL 

4662430, at *9 (E.D. Mich. Sept. 7, 2016). 

This Court disagrees with Hussain that his Reply merely amplifies the ineffective 

assistance of counsel claim he raised in his Amended Petition. And, the cases that 

Hussain cites to in support of this proposition are unavailing. 

For example, Hussain cites to Cowan v. Stovall. In Cowan, the petitioner alleged 

ineffective assistance of counsel because counsel failed to interview witnesses in 

support of her defense that she was not present during a drug transaction. Cowan v. 

Stovall, 645 F.3d 815, 818 (6th Cir. 2011). The petitioner later filed a motion to amend 

her petition, “in which she spelled out in greater detail the witnesses whom [counsel] 

had ignored and the substance of what their testimony would have been.” Id. The Sixth 
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Circuit concluded that the “facts recited in the two documents differed not in kind, but in 

specificity.” Id. at 819. 

In contrast, Hussain’s Amended Petition is limited to a claim that counsel was 

ineffective for failure to explain the plea negotiation process. In his Reply, Hussain 

raises other allegations of ineffectiveness, as outlined above. Entirely new and 

unrelated claims are presented in Hussain’s Reply that “include new and different 

theories of ineffective assistance” of counsel. Atchley v. United States, 2011 WL 

1532074, at *2 (E.D. Tenn. Apr. 21, 2011). 

Hussain’s timely original Section 2255 motion did assert a perfunctory claim of 

ineffective assistance of counsel related to plea negotiations. However, as the 

Government points out in its Motion, the allegations that Hussain raises in his Reply 

were “factual in nature and would have been known to [Hussain] at the time he filed his 

original or amended § 2255 motion.” [Doc. 86, Pg. 5-6]. See Kuehne v. United States, 

2011 WL 5526002, at *11 (S.D. Ohio Aug. 10, 2011), report and recommendation 

adopted, 2011 WL 5521245 (S.D. Ohio Nov. 14, 2011). (“the facts [Petitioner] now 

advances as underlying the claim that his trial and appellate attorneys performed 

deficiently with respect to pre-trial plea negotiations were known to Petitioner before he 

filed his original Section 2255 motion”). 

Hussain’s Reply goes beyond clarification and amplification; it raises new factual 

claims that are not properly before the Court. The Court declines to address them. 

B. Relation Back 
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Hussain did not file a motion to amend his petition a second time, nor did he give 

any indication that his Reply was intended to be an amendment. However, the Court will 

analyze the claims raised in Hussain’s Reply as if they were contained in another 

amendment to his Section 2255 petition. 

“Rule 15(c)(1) provides that an amendment relates back when it ‘asserts a claim 

... that arose out of the conduct, transaction, or occurrence set out—or attempted to be 

set out—in the original pleading[.]’ If a petition raises a new claim that does not relate 

back, however, AEDPA's statute of limitations bars consideration of the new claim.” Hill 

v. Mitchell, 842 F.3d 910, 922 (6th Cir. 2016). “If an amendment is offered for the 

purpose of merely amplifying the facts already alleged in support of a particular claim, 

the amendment relates back to the date of the original petition. However, if a movant 

seeks to introduce a new legal theory based on facts different from those underlying the 

timely claims, the amendment should not relate back and should therefore be timebarred.” Berry v. United States, 2017 WL 401269, at *10–11 (W.D. Tenn. Jan. 30, 2017) 

(internal citations and quotations omitted). 

As explained above, the theories of ineffective assistance raised in Hussain’s 

Reply are different theories of ineffectiveness and based on facts different from those 

underlying Hussain’s timely ineffective assistance of counsel claims. Atchley, 2011 WL 

1532074, at *2. In his Amended Petition, Hussain alleges that counsel was ineffective 

for failing to explain the plea negotiation process to him. In his Reply, Hussain claims 

that counsel was ineffective for various other reasons: mainly, that he was unprepared 

and uninformed in the plea negotiation process. These allegations assert “new 
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ground[s] 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, 649-650 (2005). 

The new claims Hussain presents in his Reply do not relate back to his Amended 

Petition; they are time-barred. 

C. Equitable Tolling 

“Equitable tolling permits courts to extend a statute of limitations on a case-by 

case basis to prevent inequity.” Ruth v. Unifund CCR Partners, 2009 WL 585847, at *7 

(N.D. Ohio Mar. 6, 2009), aff'd, 604 F.3d 908 (6th Cir. 2010). The Supreme Court has 

said that Section 2254 habeas petitions are subject to equitable tolling. Holland v. 

Florida, 560 U.S. 631, 645 (2010). In the Sixth Circuit, “the one-year statute of 

limitations for filing a § 2255 petition is subject to equitable tolling.” Johnson v. United 

States, 457 F. App’x 462, 469 (6th Cir. 2012). “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.” Holland, 560 

U.S.at 649 (internal citations and quotations omitted). 

 Hussain claims entitlement to equitable tolling. Although he does not explicitly 

argue that extraordinary circumstances prevented him from timely filing, Hussain says 

that he “was without post-conviction counsel for an extended period of time during 

which any amendment could have been timely filed.” [Doc. 88. Pg. 9]. He further claims 

that because he had not been provided with a copy of his Amended Petition, he did not 

know what was on record, and “had no opportunity to discuss the substance of the 

motion or possible amendment with counsel” until he received counsel. Id. 
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Although Hussain retained counsel only a few days before the apparent deadline 

to amend his habeas petition, to qualify as “extraordinary circumstances,” Hussain must 

show more than just his status as pro se. Jones v. United States, 689 F.3d 621, 627 

(6th Cir. 2012). And, although Hussain may have not had a copy of his Amended 

Petition, he does not allege any extraordinary circumstances that made it difficult for him 

to obtain a copy. See id., (holding that a combination of factors such as custody 

transfers without legal materials, partial illiteracy, and medical conditions that impede 

ability to adequately obtain legal information, warrant equitable tolling). 

Thus, even if Hussain “diligently pursued his rights” as he claims, by complying 

with this Court’s filing deadlines, [Doc. 88. Pg. 9], Hussain fails to demonstrate 

extraordinary circumstances which prevented him from filing another amended Section 

2255 petition before the statute of limitations lapsed. 

Hussain is not entitled to equitable tolling. 

III. Conclusion 

The Government’s Motion to strike Hussain’s Reply is GRANTED. 

IT IS ORDERED. 

 S/Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: September 28, 2017