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D ock e t 98-1548

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. e du/thir dc ir c uit_1999/106Filed 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 certai n drugrelated offenses including conspiracy to distribute cocaine and cocaine base, RICO, possession of cocaine with intent to distribute, and money laundering. The district c ourt 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. Duffu s, 980 F.2d 725 (3d Cir. 1992) (table). Duffus did notfile a petition
for certiorari.

In March 1997, Duffus, who was pro se throughout th e 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 c orrect

2sentence pursuant to section 2255.1 While the

Antiterrorism and Effective Death Penalty Act of 19 96 ("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 pe riod after AEDPA's effective date of April 24, 1996, to file s ection 2255 motions. Furthermore, we have held that federal pri soners were entitled to a full one-year period after April 24, 1996,
to file section 2255 motions so that the AEDPA woul d 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 secti on 2255 in March 1997, it would have been untimely as it is cl ear that in his case the one year would have been measured f rom the date when we affirmed his conviction on direct appeal and the period for seeking a writ of certiorari exp ired. See Kapral v. United States, 166 F.3d 565, 577 (3d Cir. 1999). Thus, the effect of Burns v. Morton was to make Duf fus's
conviction and all other convictions in this circui t otherwise final before the effective date of the AEDPA, April 24, 1996, final on that day for purposes of calculating the l imitations period under section 2255.

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

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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 fro m the latest of --

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

(2) the date on which the impediment to mak ing a motion created by governmental action in violation of the C onstitution 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 wa s initially recognized by the Supreme Court, if that right has been ne wly recognized by the Supreme Court and made retroactively applica ble 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.

3Duffus's motion for an extension of time to file a motion for

relief under section 2255, as it did not have the a uthority
to extend the AEDPA statute of limitations. Neverth eless,
the court indicated that Duffus could file his sect ion 2255 motion "and request leave to supplement it within 3 0 or 60 days."

On April 23, 1997, Duffus filed a timely section 22 55 motion within the grace period established by Burns v. Morton. In his motion Duffus asserted that his atto rney had been ineffective because the attorney failed to con tend on appeal that the evidence was insufficient to convic t 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 Duf fus allegedly withdrew from the conspiracy. Duffus also asserted that the district court wrongfully attribu ted more than 50 kilograms of cocaine to him in calculating his sentence. The government filed a response urging th at the "motion should be denied in its entirety" on the gr ounds that it was procedurally defective and lacking in m erit.2

Thereafter on October 28, 1997, more than six month s after Duffus filed his section 2255 motion andfive years after we affirmed his conviction on his direct appe al, Duffus moved to amend the motion. His proposed amendment included various bases for relief and, as germane h ere, urged that his trial attorney had been ineffective for failing to move to suppress evidence. Duffus explained in h is brief supporting his motion to amend that when the Philad elphia police stopped him on December 31, 1987, while he w as driving a motor vehicle, they said that they did so because he had run a stop sign. They also stated that he ra n away and dropped a sock containing nine ounces of cocain e which they recovered.

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2. The government also contended that the petition was late because it was docketed in the district court on April 29, 199 7. The court, however, regarded it as timely because Duffus placed it in t he prison mail box on April 23, 1997. See Burns v. Morton, 134 F.3d at 11 2-13. The government does not challenge this decision on this appeal.

4Duffus indicated that when he found out that he was

being charged for an offense arising out of his pos session of this cocaine he advised his attorney that the polic e had stopped him for no reason and then found the cocain e 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 w as a reasonable probability that in evaluating the credi bility 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 ac quittal 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 judg e who filed a report and recommendation on April 6, 1998, recommending that the district court deny both Duff us'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 eviden tiary 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, a nd filed a motion asking the district court to issue a certificate of appealability.3 The district court denied the mo tion 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 t he district court erred in denying [his] motion to amend his se ction 2255 motion."4 On August 28, 1998, the government f iled

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3. Inasmuch as Duffus filed his section 2255 motion after the effective date of the AEDPA he was required to seek a certifi cate 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 certific ate of appealability, Duffus's appeal could not go beyond those three iss ues. See United States v. Eyer, 113 F.3d 470, 474 (3d Cir. 1997).

5a motion seeking reconsideration of the order grant ing the

certificate of appealability which the motions pane l referred to the merits panel.

On this appeal, Duffus argues only that the magistr ate judge and the district court abused their discretio n when they respectively recommended that the amendment no t be allowed and denied the motion to amend. This appeal
, however, can be only from the district court's orde r. The particular argument that Duffus sought to make in h is motion to amend, which he presses on this appeal, i s that his attorney rendered ineffective assistance by fai ling 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 amen dment was unwarranted. He pointed out that Duffus waited six years before he filed the section 2255 motion and t hat he had the advantage of the one-year grace period. Mor eover, there was nothing in the motion to amend that could not have been included in the original motion. The magi strate 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 mot ion to amend well after the court's deadline. Finally, the magistrate judge said that the motion to amend soug ht to
advance issues that had "no merit." The district co urt entered its order approving and adopting the report and recommendation and denying the motion to amend with out opinion.

The Federal Rules of Civil Procedure apply to motio ns to amend habeas corpus motions. See Riley v. Taylor, 6 2 F.3d 86, 89 (3d Cir. 1995). We review a district court o rder denying a motion to amend for an abuse of discretio n. See id. Rule 15(a) provides that a party may amend his pleading

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5. The amendment raised other issues but Duffus doe s not advance them on this appeal.

6once as a matter of course at any time before a res ponsive

pleading is filed. In this case, however, the gover nment 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 wh en amendment as a matter of course is not allowed, "a party may amend the party's pleadings only by leave of co urt [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 mot ive on the part of the movant, repeated failure to cure de ficiencies by amendments previously allowed, undue prejudice t o the opposing party by virtue of allowing the amendment [or] futility of amendment," leave to amend should be fr eely given. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962). Furthermore, we have indicated that ord inarily delay alone is not a basis to deny a motion to amen d. 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 thoug ht that Duffus makes a strong showing that the district cou rt abused its discretion in denying leave to amend unl ess the
amendment would have been futile.

There is, however, a special situation here. Under the AEDPA statute of limitations, with its recognized g race period, Duffus had until April 23, 1997, to file hi s motion because 28 U.S.C. S 2255 provides that motions must be filed within one year from "the date on which the j udgment
of conviction becomes final." While section 2255 ha s three additional provisions providing for later dates fro m which the statute runs, none is implicated here. Thus, in the absence of the one-year grace period, the AEDPA wou ld
have barred Duffus's motion when the AEDPA became effective. As we have explained, however, because o f the grace period, Duffus's conviction for purposes of t he section 2255 limitations period became final on April 24, 1 996. Accordingly, if the district court had granted the motion to amend, filed on October 28, 1997, it would have fru strated the intent of Congress that claims under 28 U.S.C. S 2255 be advanced within one year after a judgment of con viction becomes final unless any of the other circumstances in 28

7U.S.C. S 2255 are applicable. Therefore, we cannot possibly

say that the court abused its discretion when it de nied 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 motio n after April 23, 1997. Certainly the court could hav e 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 particu lar claim with respect to failing to move to suppress evidenc e was completely new. Thus, the amendment could not be de emed timely under the "relation back" provisions of Fed. R. Civ. P. 15(c). As the Court of Appeals for the Eighth Ci rcuit recently explained in United States v. Craycraft, 1 67 F.3d 451, 457 (8th Cir. 1999), "If the ineffective condu ct alleged by Craycraft in his first petition cannot be said t o 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 p recedent. In these circumstances and considering the April 23 , 1997 deadline, the district court was correctly circumsp ect in considering an application to amend. Indeed, the co urt 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 t he motion.7

We reiterate that if the court permitted the amendm ent it would have acted contrary to the policy of the AEDP A, which requires courts to measure the running of the limitations periods from the date on which the judg ment of
conviction becomes final. While the statute will ru n from

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6. In our discussion we are proceeding on the under standing 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 2 255 motion to advance a claim that is timely under that section.

7. Duffus cannot claim reasonably that the court mi sled him by indicating that it would entertain a motion to supp lement 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 too k six months to seek to

amend.

8"the date on which the facts supporting the claim o r claims

presented could have been discovered through the ex ercises of due diligence" if that date follows the date the judgment of conviction becomes final, Duffus was aware of th e facts to support his claim before his conviction becamefi nal. In these circumstances, an amendment to introduce the new theory into the case that his trial attorney had be en ineffective for failing to move to suppress the coc aine, is simply not acceptable.

In reaching our result we recognize that the law governing habeas corpus motions can be quite techni cal and that it may be difficult for even an attorney t o grasp all of its nuances. Surely, then, a court could not exp ect a pro se litigant such as Duffus to understand all the as pects 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 tho ught 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. Accord ingly, the court did not abuse its discretion in denying the m otion 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 d elay if the court granted his motion to amend. In fact, the magistrate judge recommended rejection on the merit s of all
of Duffus's contentions in his initial section 2255 motion, and clearly he similiarly would have recommended th at the court reject the ineffective assistance of counsel argument
if Duffus had included it in his initial motion. Af ter all, the magistrate judge said the issues Duffus raised in t he proposed amendment had "no merit." Furthermore, we cannot say that the passage of time, either from th e conviction date until the time of the initial secti on 2255 motion, or from the time of that motion until Duffu s sought to amend, would have impaired the government's abil ity to prosecute this case if the district court had order ed a new
trial.

9We do not predicate our result, however, on a findi ng of

prejudice. Instead, we have reached our conclusion in recognition of the principle that usually statutes of limitations operate without taking prejudice from d elay into account. A prisoner should not be able to assert a claim otherwise barred by the statute of limitations mere ly because he asserted a separate claim within the lim itations 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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