United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
This matter is before the court on Petitioner Sedieka McClam's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 74).
Background and Procedural Posture
On January 24, 2012, Petitioner was charged in Count One of a three count indictment with possession with intent to distribute a quantity of marijuana and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and (b)(1)(D) and in Count Three with using and carrying a firearm during and in relation to and possessing a firearm in furtherance of a drug trafficking crime, in violation of Title 18, United States Code § 924(c)(1)(A). Petitioner entered a plea of guilty to Counts One and Three of the indictment on July 10, 2012. On November 6, 2012, the court sentenced petitioner as a career offender to 262 months imprisonment. A direct appeal was filed. On June 11, 2013, the Fourth Circuit Court of Appeals affirmed the conviction and sentence. The mandate was filed on July 3, 2013.
Petitioner returns to this court by way of petition filed September 3, 2013 (based on date of delivery to prison mail room) to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In his petition, he alleges ineffective assistance of counsel in failing to move to withdraw the guilty plea on the basis that Petitioner "was only aware that he was being held accountable for the marijuana offense." (ECF No. 74-1, p.3) He further alleges that his attorney was ineffective at sentencing in failing to challenge the career offender designation on the basis that his 1999 South Carolina conviction did not qualify as a controlled substance offense, resulted in a suspended sentence, and never exposed him to imprisonment in excess of one year. Trial counsel, James Rogers, filed an affidavit on September 25, 2013. The government filed a Motion for Summary Judgment and response to the petition on November 4, 2013. A Roseboro Order was entered on November 5, 2013 and mailed to the petitioner. On December 10, 2013, Petitioner filed a response in opposition to the motion for summary judgment.
On April 22, 2014, Petitioner filed a Motion to Amend his petition (ECF No. 98). In the motion to amend, Petitioner seeks to amend his petition to assert on the basis of Descamps v. United States, 133 S.Ct. 2276 (2013) and United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013) that his prior 1999 South Carolina drug conviction does not qualify as a "controlled substance offense" for enhancement purposes under the career offender guideline provision. The Court ordered the government to respond to the motion to amend, and a response in opposition was filed on May 8, 2014. Petitioner filed a reply to the response on May 29, 2014.
Motion to Amend
Section 2255 provides a one-year statute of limitations which applies to the filing of Section 2255 petitions, commencing on the date that the judgment of conviction becomes final. See Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255(1). The mandate from Petitioner's direct appeal was issued on July 3, 2013. The motion to amend was filed on April 22, 2014. Therefore, the petitioner's motion to amend was timely under the AEDPA.
"Rule 12 of the Rules Governing Section 2255 Proceedings states, If no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules... and may apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate.' The Rules Governing Section 2255 do not specify a procedure for amending petitions. Therefore, courts have typically applied Federal Rule of Civil Procedure 15 to the amendment of a § 2255 motion." United States v. Pittman, 209 F.3d 314, 316-317 (4th Cir. 2000).
Pursuant to Fed.R.Civ.P. 15(a), a party must obtain leave of court to amend a pleading where the opposing party has served a responsive pleading. "Under Rule 15(a) leave to amend should be given freely, absent bad faith, undue prejudice to the opposing party, or futility of amendment." Pittman, 209 F.3d at 317.
The motion to amend was made after the respondent had responded with the motion for summary judgment and supporting memorandum and affidavit. In addition, the grounds which Petitioner attempts to assert in his motion to amend were available to the petitioner at the time he filed his initial petition. Descamps was decided on June 20, 2013, before the petition in this case was filed. The Court concludes that granting the motion to amend would unduly prejudice the respondent.
Additionally, even if no prejudice existed, the amendment would be futile. First, McClam waived his right to file a Section 2255 petition, except on the basis of ineffective assistance of counsel or prosecutorial misconduct, in his plea agreement. (ECF No. 43) The Court questioned McClam during the Rule 11 colloquy concerning his decision to waive his rights under Section 2255. (Plea Tr. p. 65) McClam asserts in his Reply (ECF No. 105) that he is alleging ineffective assistance of counsel in failing to make an argument at sentencing on the basis of Descamps.  However, the sentencing hearing occurred before the decision in Descamps was issued. Counsel is not generally found to be ineffective for failing to anticipate a change in the law. See Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir. 1983); Moss v. Ballard, 537 Fed.Appx. 191, 195 (4th Cir. 2013).
Also, "[t]he writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, will not be allowed to do service for an appeal.' (internal citation omitted) For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. (internal citations omitted) Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice'". Stone v. Powell, 428 U.S. 465, n. 10 (1976); see also United States v. Boyd, No. 02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002) ("Non-constitutional claims that could have been raised on direct appeal... may not be raised in a collateral proceeding under § 2255."). Here, to the extent that Petitioner attempts to challenge his classification as a career offender, this could have been asserted on appeal through the filing of a petition for rehearing.
In addition, even if the claim is considered to be cognizable under the reasoning of the Fourth Circuit panel decision of Whiteside v. United States, ___ F.3d ___, 2014 WL 1364019 (4th Cir. 2014)(petition for rehearing en banc granted July 10, 2014, which vacates the original ...