May 21, 2013
ROBERTO DIAZ, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER TO AMEND
JOHN G. KOELTL, District Judge.
Roberto Diaz ("the Movant"), currently incarcerated at the Federal Correctional Institution in Fort Dix, New Jersey, brings this pro se motion under 28 U.S.C. § 2255 challenging the legality of his sentence entered in United States v. Diaz, No. 11 Cr. 0474 (JGK) (S.D.N.Y. May 31, 2012). For the following reasons, the Court directs the Movant to file an amended motion within sixty days of the date of this order as detailed below.
STANDARD OF REVIEW
A prisoner in federal custody may bring a motion under 28 U.S.C. § 2255 attacking his conviction and sentence on many grounds, including that it is in violation of the United States Constitution or United States law. 28 U.S.C. § 2255. Under Rule 4(b) of the Rules Governing § 2255 Proceedings, the Court must review and dismiss a § 2255 motion before directing an answer "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief...." Rules Governing § 2255 Proceedings, Rule 4(b) ("Habeas Rules"); see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court must construe pro se pleadings liberally, however, and interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (citations omitted); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt "from compliance with relevant rules of procedural and substantive law." Tragath v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting Birl v. Estelle, 600 F.2d 592, 593 (5th Cir. 1981)).
The Movant pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute heroin, 21 U.S.C. § 846, and was sentenced principally to 121 months imprisonment. United States v. Diaz, No. 11 Cr. 0474 (JGK) (S.D.N.Y. May 31, 2012). The Movant briefly alleges four grounds for relief and attempts to "reserve the right to amend this motion" and each ground for relief. (Mot. under § 2255 at 5-6, 8-9, ECF No. 1.) He has also applied for an extension of time to file a memorandum of law in support of his § 2255 motion. (Mot. for Extension, ECF No. 2.)
Rule 2(b)(2) of the Habeas Rules specifies that a motion under § 2255 must state the facts supporting each ground for relief. Rule 12 of the Habeas Rules provides that the Federal Rules of Civil Procedure may apply to § 2255 proceedings to the extent that they are not inconsistent with the Habeas Rules or § 2255 itself. Cf. Day v. McDonough, 547 U.S. 198, 207 (2006) (discussing petitions under § 2254). Under Federal Rule of Civil Procedure 15, the Court "should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2).
When a § 2255 motion is amended after the limitations period has run, Rule 15(c) of the Federal Rules of Civil Procedure applies. See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 814-16 (2d Cir. 2000) (holding that Rule 15(c) applies to amended petitions under § 2254 and noting that "Sections 2254 and 2255 are generally seen as in pari materia "). Under Rule 15(c), a late amendment "relates back" to the date of the original motion if "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading...." Fed.R.Civ.P. 15(c)(1)(B).
Absent special circumstances, the one-year limitations period for a motion under § 2255 begins running on the date that the movant's "judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). If a movant does not directly appeal the underlying federal conviction, the § 2255(f)(1) limitations period begins running upon expiration of the fourteen-day period for filing an appeal. Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005) (per curiam); see Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012) (holding that the time to file a motion under § 2254 begins to run after the time to file direct appeal has expired if the petitioner has not filed a direct appeal).
The Movant's allegations in support of his grounds for relief are sparse; for that reason, his motion does not comply with Rule 2(b) of the Habeas Rules. Unless the Movant alleges facts in support of his § 2255 motion, the Respondent cannot file a meaningful answer, and the Court will not order the Respondent to file any such answer. Rather, the Movant is granted leave to file an amended motion within sixty days of the date of this order. The amended motion should allege facts in support of each ground for relief that the Movant asserts.
The Movant did not file a direct appeal of the Court's May 31, 2012 judgment against him; therefore, the one-year limitations period for a § 2255 motion began to run on June 15, 2012. Absent circumstances warranting equitable tolling, the limitations period will expire on June 15, 2013. Therefore, if the amended motion is filed after June 15, 2013, newly alleged facts will "relate back" to the date the original motion was filed only if the original motion gave the Respondent fair notice of the newly alleged claims. The Movant will avoid this procedural hurdle if he files his amended motion before June 15, 2013.
The Movant is directed to file an amended motion under 28 U.S.C. § 2255 alleging facts in support of each of his grounds for relief. The Movant must caption the new motion as an "Amended Motion, " label the motion with docket numbers 13 Civ. 2743 (JGK) and 11 Cr. 0474 (JGK), and submit the motion to the Court's Pro Se Office within sixty days of the date of this order. The form that the Movant should use for his amended motion is attached to this order. His Motion will be denied If the Movant fails to submit his amended motion within the time allowed, and he cannot show good cause to excuse such failure.
This Order terminates the motion for extension of time pending at ECF No. 2.
Because the Movant has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue under 28 U.S.C. § 2253.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 445 (1962) (holding that an appellant demonstrates good faith when the appellant seeks review of a nonfrivolous issue).