1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-1999

USA v. Duffus

Precedential or Non-Precedential:

Docket 98-1548

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Recommended Citation

"USA v. Duffus" (1999). 1999 Decisions. Paper 106.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/106
Filed April 20, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-1548 

UNITED STATES OF AMERICA 

v. 

CLINTON DUFFUS a/k/a "Paul Lewis, Beanie" 

Clinton Duffus, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

District Judge: Honorable James McGirr Kelly 

(D.C. Civ. No. 90-00238-7) 

Submitted under Third Circuit LAR 34.1(a) 

March 25, 1999 

BEFORE: GREENBERG, ROTH, and ROSENN, 

Circuit Judges 

(Filed: April 20, 1999) 
 Michael R. Stiles 

 United States Attorney 

 Walter S. Batty, Jr. 

 Assistant United States Attorney 

 Chief of Appeals 

 Dina A. Keever 

 Assistant United States Attorney 

 Office of United States Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

 Attorneys for Appellee 

 Arza R. Feldman 

 Feldman & Feldman 

 1800 Northern Boulevard 

 Suite 206 

 Roslyn, NY 11576 

 Attorneys for Appellant 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

A jury convicted appellant Clinton Duffus of certain drugrelated offenses including conspiracy to distribute cocaine 

and cocaine base, RICO, possession of cocaine with intent 

to distribute, and money laundering. The district court on 

November 26, 1991, sentenced Duffus to concurrent 

sentences so that his effective custodial term was 400 

months. Duffus appealed but we affirmed on October 29, 

1992, by judgment order. See United States v. Duffus, 980 

F.2d 725 (3d Cir. 1992) (table). Duffus did notfile a petition 

for certiorari. 

In March 1997, Duffus, who was pro se throughout the 

proceedings under 28 U.S.C. S 2255 in the district court 

involved in this appeal, filed a motion seeking an extension 

of time to file a motion to vacate, set aside, or correct 

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sentence pursuant to section 2255.1 While the 

Antiterrorism and Effective Death Penalty Act of 1996 

("AEDPA") provides "[a] 1-year period of limitation to a 

motion under" section 2255 measured from the latest of 

several events, the Department of Justice has taken the 

position that prisoners were entitled to a grace period after 

AEDPA's effective date of April 24, 1996, to file section 2255 

motions. Furthermore, we have held that federal prisoners 

were entitled to a full one-year period after April 24, 1996, 

to file section 2255 motions so that the AEDPA would not 

be "impermissibly retroactive." See Burns v. Morton, 134 

F.3d 109, 111-12 (3d Cir. 1998). Without that grace period, 

if Duffus had filed a motion for relief under section 2255 in 

March 1997, it would have been untimely as it is clear that 

in his case the one year would have been measured from 

the date when we affirmed his conviction on direct appeal 

and the period for seeking a writ of certiorari expired. See 

Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). 

Thus, the effect of Burns v. Morton was to make Duffus's 

conviction and all other convictions in this circuit otherwise 

final before the effective date of the AEDPA, April 24, 1996, 

final on that day for purposes of calculating the limitations 

period under section 2255. 

The district court, by order dated April 18, 1997, denied 

_________________________________________________________________ 

1. Section 2255 provides in relevant part: 

 A 1-year period of limitation shall apply to a motion under this 

 section. The limitation period shall run from the latest of -- 

 (1) the date on which the judgment of conviction becomes final; 

 (2) the date on which the impediment to making a motion created 

 by governmental action in violation of the Constitution or laws of 

the 

 United States is removed, if the movant was prevented from making 

 a motion by such governmental action; 

 (3) the date on which the right asserted was initially recognized 

by 

 the Supreme Court, if that right has been newly recognized by the 

 Supreme Court and made retroactively applicable to cases on 

 collateral review; or 

 (4) the date on which the facts supporting the claim or claims 

 presented could have been discovered through the exercise of due 

 diligence. 

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Duffus's motion for an extension of time to file a motion for 

relief under section 2255, as it did not have the authority 

to extend the AEDPA statute of limitations. Nevertheless, 

the court indicated that Duffus could file his section 2255 

motion "and request leave to supplement it within 30 or 60 

days." 

On April 23, 1997, Duffus filed a timely section 2255 

motion within the grace period established by Burns v. 

Morton. In his motion Duffus asserted that his attorney had 

been ineffective because the attorney failed to contend on 

appeal that the evidence was insufficient to convict Duffus 

of money laundering and because the attorney failed to 

object at sentencing to the district court's use of the 

sentencing guidelines in effect at the time of the sentencing 

rather than those in effect in April 1988, when Duffus 

allegedly withdrew from the conspiracy. Duffus also

asserted that the district court wrongfully attributed more 

than 50 kilograms of cocaine to him in calculating his 

sentence. The government filed a response urging that the 

"motion should be denied in its entirety" on the grounds 

that it was procedurally defective and lacking in merit.2 

Thereafter on October 28, 1997, more than six months 

after Duffus filed his section 2255 motion andfive years 

after we affirmed his conviction on his direct appeal, Duffus 

moved to amend the motion. His proposed amendment 

included various bases for relief and, as germane here, 

urged that his trial attorney had been ineffective for failing 

to move to suppress evidence. Duffus explained in his brief 

supporting his motion to amend that when the Philadelphia 

police stopped him on December 31, 1987, while he was 

driving a motor vehicle, they said that they did so because 

he had run a stop sign. They also stated that he ran away 

and dropped a sock containing nine ounces of cocaine 

which they recovered. 

_________________________________________________________________ 

2. The government also contended that the petition was late because it 

was docketed in the district court on April 29, 1997. The court, however, 

regarded it as timely because Duffus placed it in the prison mail box on 

April 23, 1997. See Burns v. Morton, 134 F.3d at 112-13. The 

government does not challenge this decision on this appeal. 

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Duffus indicated that when he found out that he was

being charged for an offense arising out of his possession of 

this cocaine he advised his attorney that the police had 

stopped him for no reason and then found the cocaine 

inside his vehicle. Nevertheless, his attorney did not move 

to suppress the cocaine as evidence and he did not even 

investigate Duffus's assertion. Duffus argued that if his 

attorney had moved to suppress the evidence there was a 

reasonable probability that in evaluating the credibility of 

the witnesses the court would have believed him and

granted the motion to suppress. He asserted that 

supression of the evidence would have led to his acquittal 

on the charge of possession of cocaine with intent to 

distribute. 

The court referred Duffus's section 2255 motion, 

including the motion to amend, to a magistrate judge who 

filed a report and recommendation on April 6, 1998,

recommending that the district court deny both Duffus's 

original motion and his motion to amend without an 

evidentiary hearing. On May 19, 1998, the district court 

entered an order approving and adopting the report and 

recommendation and denying the section 2255 motion, and 

thus the motion to amend as well, without an evidentiary 

hearing. Duffus then moved for reconsideration but the 

district court denied that motion on July 7, 1998. 

Duffus then appealed from the July 7, 1998 order, and 

filed a motion asking the district court to issue a certificate 

of appealability.3 The district court denied the motion by 

order entered August 20, 1998. Duffus also filed a request 

for a certificate of appealability with this court which a 

motions panel granted on August 20, 1998, on three 

issues, the third being Duffus's allegation "that the district 

court erred in denying [his] motion to amend his section 

2255 motion."4 On August 28, 1998, the government filed 

_________________________________________________________________ 

3. Inasmuch as Duffus filed his section 2255 motion after the effective 

date of the AEDPA he was required to seek a certificate of appealability 

even though he had been convicted before that date. See United States 

v. Skandier, 125 F.3d 178, 180 (3d Cir. 1997). 

4. Inasmuch as the district court denied a certificate of appealability, 

Duffus's appeal could not go beyond those three issues. See United 

States v. Eyer, 113 F.3d 470, 474 (3d Cir. 1997). 

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a motion seeking reconsideration of the order granting the 

certificate of appealability which the motions panel referred 

to the merits panel. 

On this appeal, Duffus argues only that the magistrate 

judge and the district court abused their discretion when 

they respectively recommended that the amendment not be 

allowed and denied the motion to amend. This appeal, 

however, can be only from the district court's order. The 

particular argument that Duffus sought to make in his 

motion to amend, which he presses on this appeal, is that 

his attorney rendered ineffective assistance by failing to 

move to suppress the nine ounces of cocaine seized when 

the police arrested him on December 31, 1987.5 

II. DISCUSSION 

The magistrate judge recommended that the district court 

deny the motion to amend because he concluded that 

Duffus's delay in presenting the issues in the amendment 

was unwarranted. He pointed out that Duffus waited six 

years before he filed the section 2255 motion and that he 

had the advantage of the one-year grace period. Moreover, 

there was nothing in the motion to amend that could not 

have been included in the original motion. The magistrate 

judge also noted that the district court indicated that it 

would allow Duffus additional time, 30 or 60 days, to move 

to supplement his motion. Yet, Duffus filed the motion to 

amend well after the court's deadline. Finally, the

magistrate judge said that the motion to amend sought to 

advance issues that had "no merit." The district court 

entered its order approving and adopting the report and 

recommendation and denying the motion to amend without 

opinion. 

The Federal Rules of Civil Procedure apply to motions to 

amend habeas corpus motions. See Riley v. Taylor, 62 F.3d 

86, 89 (3d Cir. 1995). We review a district court order 

denying a motion to amend for an abuse of discretion. See 

id. Rule 15(a) provides that a party may amend his pleading 

_________________________________________________________________ 

5. The amendment raised other issues but Duffus does not advance 

them on this appeal. 

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once as a matter of course at any time before a responsive 

pleading is filed. In this case, however, the government filed 

a responsive pleading before Duffus sought to amend his 

motion and it opposed the amendment. Therefore, in issue 

here is the portion of Rule 15(a) providing that when 

amendment as a matter of course is not allowed, "a party 

may amend the party's pleadings only by leave of court 

[which] leave shall be freely given when justice so requires." 

The Supreme Court has indicated that in the absence of 

evidence of "undue delay, bad faith or dilatory motive on 

the part of the movant, repeated failure to cure deficiencies 

by amendments previously allowed, undue prejudice to the 

opposing party by virtue of allowing the amendment [or] 

futility of amendment," leave to amend should be freely 

given. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 

230 (1962). Furthermore, we have indicated that ordinarily 

delay alone is not a basis to deny a motion to amend. See, 

e.g., Riley, 62 F.3d at 91; Cornell & Co., Inc. v. Occupational 

Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d 

Cir. 1978). Thus, at first glance it might be thought that 

Duffus makes a strong showing that the district court 

abused its discretion in denying leave to amend unless the 

amendment would have been futile. 

There is, however, a special situation here. Under the 

AEDPA statute of limitations, with its recognized grace 

period, Duffus had until April 23, 1997, to file his motion 

because 28 U.S.C. S 2255 provides that motions must be 

filed within one year from "the date on which the judgment 

of conviction becomes final." While section 2255 has three 

additional provisions providing for later dates from which 

the statute runs, none is implicated here. Thus, in the 

absence of the one-year grace period, the AEDPA would 

have barred Duffus's motion when the AEDPA became 

effective. As we have explained, however, because of the 

grace period, Duffus's conviction for purposes of the section 

2255 limitations period became final on April 24, 1996. 

Accordingly, if the district court had granted the motion to 

amend, filed on October 28, 1997, it would have frustrated 

the intent of Congress that claims under 28 U.S.C. S 2255 

be advanced within one year after a judgment of conviction 

becomes final unless any of the other circumstances in 28 

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U.S.C. S 2255 are applicable. Therefore, we cannot possibly 

say that the court abused its discretion when it denied the 

motion to amend. 

We do not go so far as to suggest that the district court 

could not have permitted any amendment of the motion 

after April 23, 1997. Certainly the court could have 

permitted an amendment to clarify a claim initially made.6 

Here, however, while Duffus asserted in his initial motion 

that his attorney had been ineffective, the particular claim 

with respect to failing to move to suppress evidence was 

completely new. Thus, the amendment could not be deemed 

timely under the "relation back" provisions of Fed. R. Civ. 

P. 15(c). As the Court of Appeals for the Eighth Circuit 

recently explained in United States v. Craycraft, 167 F.3d 

451, 457 (8th Cir. 1999), "If the ineffective conduct alleged 

by Craycraft in his first petition cannot be said to have 

arisen out of the same set of facts as his amended claim, 

his amendment cannot relate back and his claim must be 

time-barred since it was filed after the statutory period of 

limitation." We find Craycraft to be a compelling precedent. 

In these circumstances and considering the April 23, 1997 

deadline, the district court was correctly circumspect in 

considering an application to amend. Indeed, the court was 

generous, perhaps to a fault, in indicating that it would 

consider a request made by Duffus, within 30 or 60 days 

after he filed his original motion, to supplement the motion.7 

We reiterate that if the court permitted the amendment it 

would have acted contrary to the policy of the AEDPA, 

which requires courts to measure the running of the

limitations periods from the date on which the judgment of 

conviction becomes final. While the statute will run from 

_________________________________________________________________ 

6. In our discussion we are proceeding on the understanding that none 

of the statutory bases for extending the statute of limitations beyond one 

year after the judgment of conviction is applicable here. Obviously we are 

not concerned here with an amendment of a section 2255 motion to 

advance a claim that is timely under that section. 

7. Duffus cannot claim reasonably that the court misled him by 

indicating that it would entertain a motion to supplement the original 

motion as the court limited the period to file the motion to 30 or 60 days 

after Duffus filed his first motion, and Duffus took six months to seek to 

amend. 

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"the date on which the facts supporting the claim or claims 

presented could have been discovered through the exercises 

of due diligence" if that date follows the date the judgment 

of conviction becomes final, Duffus was aware of the facts 

to support his claim before his conviction becamefinal. In 

these circumstances, an amendment to introduce the new 

theory into the case that his trial attorney had been 

ineffective for failing to move to suppress the cocaine, is 

simply not acceptable. 

In reaching our result we recognize that the law 

governing habeas corpus motions can be quite technical 

and that it may be difficult for even an attorney to grasp all 

of its nuances. Surely, then, a court could not expect a pro 

se litigant such as Duffus to understand all the aspects of 

those proceedings. Duffus, however, raised an issue that 

was not technical and that he identified before his trial 

even began. Moreover, he does not claim that he thought 

that his trial attorney in fact moved to suppress. Therefore, 

Duffus had every reason to include an argument that his 

attorney had been ineffective by failing to move to suppress 

evidence in his initial section 2255 motion. Accordingly, the 

court did not abuse its discretion in denying the motion to 

amend. See Parker v. Champion, 148 F.3d 1219, 1222 (10th 

Cir. 1998), cert. denied, 119 S.Ct. 1053 (1999). 

We make one final point. We do not suggest that the

government would have been prejudiced by Duffus's delay 

if the court granted his motion to amend. In fact, the 

magistrate judge recommended rejection on the merits of all 

of Duffus's contentions in his initial section 2255 motion, 

and clearly he similiarly would have recommended that the 

court reject the ineffective assistance of counsel argument 

if Duffus had included it in his initial motion. After all, the 

magistrate judge said the issues Duffus raised in the 

proposed amendment had "no merit." Furthermore, we 

cannot say that the passage of time, either from the 

conviction date until the time of the initial section 2255 

motion, or from the time of that motion until Duffus sought 

to amend, would have impaired the government's ability to 

prosecute this case if the district court had ordered a new 

trial. 

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We do not predicate our result, however, on a finding of 

prejudice. Instead, we have reached our conclusion in 

recognition of the principle that usually statutes of 

limitations operate without taking prejudice from delay into 

account. A prisoner should not be able to assert a claim 

otherwise barred by the statute of limitations merely 

because he asserted a separate claim within the limitations 

period. 

III. CONCLUSION 

For the foregoing reasons we will affirm the order of July 

7, 1998. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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