Court: Court of Appeals for the Seventh Circuit; May 21, 2002; Federal Appellate Court
Rene Rodriguez was sentenced to life imprisonment in 1994 for conspiring to import and distribute over 1,000 kilograms of marijuana. He filed a motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. The district court denied this motion and subsequent motions to amend his habeas pleadings to include a claim based on the Apprendi v. New Jersey decision. The court granted a certificate of appealability only for the ineffective assistance claim. Rodriguez sought to expand this certificate to include the Apprendi claim, which the Court of Appeals denied. His conviction, stemming from a jury trial where the government presented recorded evidence and testimonies, was previously upheld on appeal. In that initial appeal, the court ruled that the determination of drug quantity, which was not submitted to the jury, was correctly made by the district court using a preponderance of the evidence standard, as drug quantity is not an element of the offense.
On April 22, 1997, Rodriguez filed a motion for collateral review under 28 U.S.C. § 2255, claiming various constitutional violations, including ineffective assistance of counsel. His motion did not address the constitutionality of the drug quantity proof standard at sentencing or the district court's failure to submit this issue to the jury. Rodriguez identified nearly a dozen instances of alleged ineffective assistance, but only two were preserved for appeal: (1) He claimed he involuntarily waived his right to testify due to his attorney's incorrect advice regarding the admissibility of his prior drug trafficking convictions, and (2) he alleged that during closing arguments, his counsel improperly admitted his guilt by acknowledging possession and delivery of ten ounces of marijuana. The district court denied his motion on December 31, 1998, without an evidentiary hearing.
Subsequently, Rodriguez filed a motion on January 14, 1999, to amend the denial of his habeas application, citing transcription errors in jury-presented surveillance tapes. While this motion was pending, he sought to supplement his 2255 petition to include a claim regarding the jury's role in determining drug quantity based on a reasonable doubt standard. He also petitioned to amend again in February 2000 following the Supreme Court's certiorari grant in Apprendi v. New Jersey. In August 2000, the district court denied both the Rule 59 motion and the amendment petitions, but issued a certificate of appealability limited to the ineffective assistance claims. Rodriguez now appeals, requesting the certificate be expanded to include his Apprendi claim. The appeal process requires a certificate of appealability, which can only be granted if the applicant demonstrates a substantial showing of a constitutional rights denial.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), establishing a substantial showing of a constitutional right denial requires demonstrating that reasonable jurists could debate the resolution of the petition or find the issues worthy of further consideration. The district court did not address Rodriguez's substantive habeas claim under Apprendi but denied his post-judgment motions to raise it. For a circuit court to expand a certificate of appealability after a district court's procedural denial, the petitioner must show that reasonable jurists could debate the validity of the claim and the correctness of the procedural ruling. Here, Rodriguez is procedurally barred from his Apprendi claim since he did not raise it in his initial 2255 application, resulting in waiver on appeal. Case law supports that failing to present a claim to the district court waives it for appeal; this includes previous rulings where similar procedural defaults were upheld. Furthermore, Rodriguez cannot argue the timing of the Supreme Court's Apprendi ruling as an excuse for his waiver, as legal precedent indicates that the novelty of a claim does not justify failing to raise it timely. Rodriguez was aware of the claim's existence, evident from his earlier direct appeal, yet he chose not to include it in his habeas petition.
Rodriguez sought to preserve an appeal on his Apprendi claim by filing a motion to amend his pleadings after previously submitting a Rule 59 motion to alter the district court's judgment, which did not address the preponderance of evidence standard for drug quantity. Following the Supreme Court's grant of certiorari in Apprendi v. New Jersey, Rodriguez attempted to amend his pleadings to include an Apprendi claim, arguing that his life sentence exceeded the statutory maximum of 10 years under 21 U.S.C. § 841(b)(1)(D), as it was imposed without a jury finding on drug quantity.
The rules governing 28 U.S.C. § 2255 do not specify procedures for amendments, so amendments are governed by Federal Rule of Civil Procedure 15(a). This rule allows courts to permit amendments even after the right to amend has lapsed, provided justice requires it. Although the Antiterrorism and Effective Death Penalty Act (AEDPA) permits one full round of litigation, including amendments, the district court had already denied Rodriguez's § 2255 application before he filed his amendment.
Despite the judgment having been entered, a court can still grant a motion to amend post-judgment. However, in this circuit, the standard for granting amendments is stricter post-judgment, requiring a reopening of the judgment under Rule 59(e) or 60(b) before seeking an amendment. The court denied both Rodriguez's motion to amend and his Rule 59 motion without comment. The decision to grant or deny a motion to amend lies within the district court's discretion and can be influenced by factors such as undue delay, bad faith, prejudice, or futility.
A district court can deny a motion to amend a claim if the proposed amendment is futile, particularly if it is barred by the statute of limitations. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), federal habeas petitions are subject to a one-year statute of limitations, as outlined in 28 U.S.C. § 2255. In this case, while Rodriguez's original claim was timely, his Apprendi claim in the motion to amend was filed 30 months after the deadline had passed. Federal Rule of Civil Procedure 15(c) allows for an amended complaint to relate back to the original filing date if the new claim arises from the same transaction or occurrence as the original claim. Although the court has not specifically addressed Rule 15(c) regarding § 2255 motions, it has acknowledged that post-finality motions may be treated as second or successive applications under AEDPA.
Four circuit courts have ruled that an untimely § 2255 claim will not relate back unless it shares substantial commonality with the timely claim beyond merely originating from the same trial and sentencing. For an untimely claim to relate back, it must arise from the same factual circumstances as the timely claim, not from separate events. Additionally, these courts have uniformly rejected amendments that introduce new claims or theories of relief, emphasizing that Rule 15(c)(2) applies only to clarifications of existing claims.
In Rodriguez's situation, his original application did not address the standard of review for sentencing factors, focusing instead on ineffective assistance of counsel. The facts and issues of his Apprendi claim are unrelated to those of his ineffective assistance claims. Thus, since there is no basis for the amended claim to relate back to the original petition, it is barred by AEDPA's statute of limitations. Consequently, the district court's denial of the motion to amend as futile would not constitute an abuse of discretion.
Rodriguez's application to amend his complaint could have been denied due to undue delay, as he waited 29 months after the government's response and 32 months past the AEDPA deadline for filing a 2255 motion. He was already aware of the arguments presented in his motion to amend since they had been raised during his direct appeal. The court referenced the case Continental Bank, N.A. v. Meyer, which supports the notion that significant delays can justify denial of an amendment when the basis for it was available at the time of the original filing, potentially disrupting the opposing party's ability to conduct discovery. Rodriguez contended that his delay did not prejudice the government, as it had been informed of the claims during the direct appeal. However, the long lapse of time and the necessity for the government to reevaluate the claim could have justified a denial of the amendment based on delay.
Rodriguez also sought equitable tolling of the 2255 time limits, arguing that he could not have raised an Apprendi claim in his initial petition due to fear of sanctions. The court noted that Rodriguez was not barred from presenting this argument initially and emphasized that claims introduced for the first time during oral arguments are typically considered waived. Furthermore, Rodriguez did not provide any precedent for sanctions regarding the relitigation of claims already ruled on in direct appeals. Consequently, Rodriguez waived the Apprendi claim by failing to raise it at the district court level, and attempts to amend his application to include this claim were denied as they were untimely and did not relate back to the original petition. His inability to demonstrate that the court erred in dismissing the motions to amend precludes him from asserting a violation of constitutional rights, resulting in the denial of his motion to expand the certificate of appealability.
To establish ineffective assistance of counsel, a petitioner must demonstrate two elements as outlined in Strickland v. Washington: (1) the attorney's performance fell below an objective standard of reasonableness, and (2) but for the attorney's errors, the outcome of the proceedings would have been different. Judicial scrutiny of counsel's performance is highly deferential, meaning that only those who can prove a fair trial was denied due to gross incompetence will succeed in their claims. The burden is particularly high when challenging trial strategy, as Strickland allows for deference to counsel's decisions. To show prejudice, the errors must be egregious enough to render the trial unfair and the verdict suspect. In the case of Rodriguez, he claims ineffective assistance based on his attorney's advice regarding the admissibility of his prior convictions if he testified, arguing that this advice was incorrect and that the attorney failed to raise the issue during a pretrial conference. However, Rodriguez's argument does not satisfy either prong of the Strickland test.
Rodriguez is unable to demonstrate that his counsel's advice regarding the impeachment value of his prior drug conviction was unreasonable. According to Federal Rule of Evidence 609, evidence of a prior conviction can be admitted for impeachment if its probative value outweighs its prejudicial effect, requiring a judicial hearing to assess factors such as the relevance of the prior crime, timing of the conviction, similarity to the charged crime, the significance of the defendant's testimony, and the importance of credibility. Rodriguez's prior conviction for possession with intent to distribute drugs in 1982 is similar to his current charges, which raises concerns about unfair prejudice. However, this conviction is also critical for assessing his credibility, especially since his defense does not claim innocence but rather denies intent to join the conspiracy. Thus, the probative value of the prior conviction for credibility purposes outweighs its prejudicial effect.
Rodriguez mistakenly relies on Nichols v. Butler, arguing that improper advice about testifying constitutes ineffective assistance of counsel. In Nichols, ineffective assistance was found because the attorney coerced the defendant not to testify, which is not the case for Rodriguez, who alleges only that his attorney misadvised him. Additionally, Rodriguez points to a pre-trial discussion where his attorney failed to argue against the impeachment of his prior conviction based on its similarity to the current charge. He claims this oversight, coupled with the advice against testifying, resulted in an unknowing and involuntary waiver of his right to testify, referencing United States v. Poe, where a defendant was deprived of a fair trial due to misinformation from counsel regarding the consequences of testifying.
Poe does not support Rodriguez's claim regarding ineffective assistance of counsel. In Poe, the court affirmed that a defendant was denied a fair trial due to improper legal advice about the use of inadmissible evidence but did not find a violation of the Sixth Amendment. The ruling established that a trial judge's finding of a lack of a fair trial due to counsel's actions is only reversible if clearly erroneous. Unlike in Poe, where the evidence for impeachment was deemed inadmissible, the trial judge in Rodriguez's case indicated that evidence of his prior crimes would likely be admissible if he testified, reserving final judgment until Rodriguez's decision. Thus, failing to challenge this potential impeachment cannot be seen as unreasonable attorney behavior, as it was likely to be unsuccessful.
Moreover, even if there was an error by his counsel, Rodriguez could not meet the second prong of the Strickland test, which requires demonstrating that the alleged error impacted the trial's outcome. For Rodriguez to testify without the risk of impeachment, his attorney would have needed to succeed in arguing against the admissibility of his prior convictions, an outcome deemed unlikely. Rodriguez claimed he would have testified about attempting to deceive co-conspirators, but his counsel effectively presented this defense without his testimony by highlighting other evidence, including his retention of $50,000 and the failure to deliver marijuana.
Rodriguez's reliance on Nichols to argue prejudice is incorrect, as Nichols involved a lack of defense and insufficient prosecution evidence. In contrast, Rodriguez presented a defense while the government had substantial evidence against him, including co-conspirator testimony, phone records, and recorded calls. Therefore, Rodriguez could not show that the alleged errors by his counsel would have changed the trial's outcome.
Rodriguez asserts that his counsel's performance was inadequate due to his admission during closing arguments that Rodriguez delivered ten ounces of marijuana to Michael Cook, a government cooperator. While Rodriguez claims this concession led to his conviction, it was part of a strategic defense intended to argue that the delivery was not related to the conspiracy but a separate scheme against Cook. The court noted that acknowledging overwhelming evidence can be a reasonable trial strategy, as seen in Underwood v. Clark, where an admission of guilt was deemed a tactical decision to gain jury favor. Under the Strickland standard, Rodriguez must overcome the presumption that his counsel's actions were reasonable; given the substantial evidence against him, the strategy appeared sound and potentially could have reduced his sentence significantly.
Rodriguez also requested a remand for an evidentiary hearing regarding his counsel's effectiveness. However, such hearings are not automatically granted, particularly if the claims are vague or can be resolved based on existing records. The court determined that it had sufficient information to conclude Rodriguez received effective assistance of counsel, especially since the judge overseeing the 2255 motion had also presided over the trial. Thus, the court affirmed the decision not to hold a hearing.
Rodriguez's request to expand the certificate of appealability to include an Apprendi claim is denied. He did not demonstrate a substantial showing of a constitutional right denial, as he waived the Apprendi issue by failing to raise it in the district court. Additionally, he was procedurally barred from presenting this claim in post-judgment motions due to the statute of limitations on 2255 motions. The court also affirms the denial of his 2255 application alleging ineffective assistance of counsel, as Rodriguez could not prove that his counsel's performance was below an objective standard of reasonableness or that it prejudiced his case. Other claims by Rodriguez are waived due to his failure to address them in his appellate brief. The court emphasized that it does not have the obligation to construct legal arguments for parties represented by counsel. Rodriguez attempted to invoke the "cause and prejudice" exception to the waiver rule but failed to meet the necessary standard.
Rodriguez argues that he could not raise the Apprendi claim due to the law of the case doctrine, asserting that his claim was conclusively decided on direct appeal and therefore could not be revisited in subsequent habeas proceedings. He cites Daniels v. United States to support his position, claiming that the unchanged legal landscape precluded him from raising the claim again. However, case law indicates that a litigant must present an argument to preserve it for future review, even if it would likely fail. Notably, Judge Posner suggested that a court could reconsider the Apprendi issue on habeas review, yet because neither the Supreme Court nor the Seventh Circuit has declared Apprendi retroactive for collateral attacks, Rodriguez cannot demonstrate prejudice from not raising it.
Additionally, Rodriguez's Apprendi claim does not fall under the recent ruling in Ashley v. United States, which exempted Apprendi claims from the one-year statute of limitations in initial collateral review motions. His claim was part of a post-judgment motion to amend, which the district court properly denied as it represented a successive collateral attack subject to the gatekeeping functions of AEDPA. The court could have alternatively treated his motion as a request to file a second or successive 2255 motion, but since Apprendi has not been ruled retroactive, such a motion would be denied.
Rodriguez also contends his counsel was ineffective for not seeking a jury instruction regarding the necessity of proving an overt act in Wisconsin to establish venue, arguing that this omission allowed the jury to rely solely on actions in Texas. However, the court previously upheld the venue's validity based on evidence of conspiratorial activities involving a co-conspirator traveling between states, thus negating claims of ineffective assistance for failing to request an unwarranted jury instruction.
