The opinion of the court was delivered by: Stiehl, District Judge
Before the Court is petitioner's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Also before the Court is petitioner's second motion to amend his petition pursuant to Fed. Civ. P. Rule 15 (Doc. 7).*fn1 The government has filed its response to petitioner's motion to vacate, set aside, or correct sentence (Doc. 8), and petitioner filed objections to the government's response (Doc. 9). Additionally, the government has filed a motion to dismiss petitioner's first motion to amend his petition (Doc. 10), and an additional response to petitioner's initial motion (Doc. 11).
Petitioner was convicted by a jury of possession with intent to distribute cocaine (Count 2), in violation of 21 U.S.C. § 841(a)(1).*fn2 He was sentenced to 390 months' imprisonment on Count 2. Petitioner appealed his conviction as to Count 2, and the Seventh Circuit affirmed.
United States v. Pittman, 388 F.3d 1104 (7th Cir. 2004). However, the Seventh Circuit decision was vacated and remanded in light of United States v. Booker, 543 U.S. 220 (2005). Pittman v. United States, 544 U.S. 995 (2005). On June 29, 2006, in United States v. Pittman, No. 01-CR-30108-WDS, on remand, this Court found that it would have imposed the same sentence under the guidelines even if they had not been mandatory. (Doc. 171) On July 24, 2006, the Seventh Circuit affirmed. United States v. Pittman, 188 Fed.Appx. 514 (7th Cir. 2006).
Petitioner's pleadings present a total of six arguments under which he seeks relief. In his initial § 2255 motion, petitioner presents two arguments, each based on the theory of ineffective assistance of counsel. Specifically, petitioner claims that trial counsel: (1) failed to raise the 100-to-1 crack/powder ratio during sentencing so as to obtain a below-guidelines sentence; and (2) failed to object to Officer Jonniece Young's ("Young") testimony during the suppression hearing. Petitioner's motions to amend his petition contain allegations that: (3) petitioner was illegally sentenced because he was not informed he was limiting his opportunity to challenge his enhanced sentence based on prior convictions pursuant to 21 U.S.C. §851; (4) counsel failed to allow petitioner to testify at the suppression hearing; (5) counsel failed to impeach the testimony of Young and of co-defendant and witness Amanda Schoeneweis; and (6) counsel failed to inform petitioner of a possible plea agreement with the Government.
The relevant statute of limitations requires that a § 2255 motion be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). When a defendant appeals his conviction to the Court of Appeals but does not further appeal, the one-year period is measured from the end of the time for filing a petition for certiorari in the Supreme Court. See Clay v. United States, 537 U.S. 522, 525 (2003) ("For the purpose of starting the clock on § 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction.")
The time in which petitioner could have petitioned for a writ of certiorari expired on October 23, 2006, the first weekday 90 days after the Seventh Circuit's judgment was entered in United States v. Pittman, 188 Fed. Appx. 514 (7th Cir. 2006). See SUP. CT. R. 13(1). Therefore, the deadline for filing a § 2255 motion was October 23, 2007. Petitioner filed his original § 2255 motion on October 22, 2007, within the one year statute of limitations for such motions. However, petitioner has since filed two motions to amend outside of this time limit, on February 15, 2008, (Doc. 3), and on December 17, 2008, (Doc. 7).
Amended habeas petitions may be filed outside of the one year time limit when "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" motion. Fed. R. Civ. P. 15(c)(1)(B). Any new claim made in an amended petition must be "tied to a common core of operative facts" with a claim in the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). Based on this principle, most of the claims in the amended complaints are time-barred.
Petitioner's two claims in the original petition were for ineffective assistance of counsel based on counsel's failure to raise the issue of the cocaine disparity at sentencing, and failure to object to Young's testimony. The third claim is based on the failure of the trial court to adequately warn the petitioner. None of the facts alleged in this claim relate "in both time and type [to] those of the original pleading." Felix, 545 U.S. at 650. Therefore, the third claim, the only claim alleged in the motion to amend dated February 15, 2008 (Doc. 3), is technically untimely. Although this claim was untimely, the Court granted petitioner's motion to amend his petition, and thus will consider the merits of this argument (Doc. 4). The government's motion to dismiss petitioner's motion to amend (Doc. 10) is DENIED as moot in light of the Court's earlier ruling (Doc. 4).
Petitioner's fourth and sixth claims are based on ineffective assistance of counsel premised on petitioner's allegations that he was not allowed to testify at the suppression hearing and that petitioner was not informed of a possible plea agreement. The facts alleged to support these claims do not relate to those in the original petition. These claims, instead, are based on entirely different facts. Therefore, the fourth and sixth claims, (the first and third claims alleged in the motion to amend dated December 17, 2008), are untimely, and their merits will not be considered. Therefore, the Court DENIES IN PART petitioner's motion to amend dated December 17, 2008, (Doc. 7), and the first and third claims of the motion are DISMISSED as untimely.
Petitioner's fifth claim is for ineffective assistance of counsel for failure to impeach the testimony of Young and co-defendant Amanda Schoeneweis. The second claim of petitioner's initial, timely petition, is based on ineffective assistance of counsel for failure to impeach Young. Therefore, the portion of the fifth claim that relates to Young is a proper amendment to the original petition, and its merits will be considered, and petitioner's motion to amend (Doc. 7) is GRANTED IN PART, only to the extent that it relates back to petitioner's initial petition. On the other hand, counsel's failure to impeach Schoeneweis is based on new facts and does not relate to any of the claims in the original petition, including the failure to impeach Young. Therefore, the claim of ineffective assistance of counsel for failure to impeach Schoeneweis is untimely and its merits will not be considered, and is DISMISSED as untimely.
In sum, the Court will consider petitioners first, second, third, and part of the fifth claims on their merits, and all other ...