[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
No. 08-15255 ELEVENTH CIRCUIT
JULY 15, 2009
THOMAS K. KAHN
D. C. Docket Nos. 07-08007-CV-2-RDP-PWG,[End Page 05-00398-CR-2-R]
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the Northern District of Alabama
(July 15, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
Eric Mabry, a federal prisoner proceeding pro se, appeals the dismissal of
his 28 U.S.C. § 2255 motion to vacate his sentence. We granted a certificate of
appealability ("COA") on the following issue: "Whether the district court erred in
finding that appellant's new claims, raised in his reply brief, were time-barred
because they did not relate back to the original § 2255 motion."
After the government responded to Mabry's original § 2255 motion and
after § 2255(f)'s one-year time limit had expired, Mabry raised several new claims.
On appeal, Mabry argues that his new claims relate back to his original § 2255
motion because his new claims and original claims all have in common the
interpretation of his plea agreement.1
In Part I, we discuss the applicable law. In Part II, we discuss each of
Mabry's claims. We affirm as to four of these claims. We vacate and remand as to
We review de novo a district court's conclusion that a § 2255 motion is
time-barred. Jones v. United States, 304 F.3d 1035
, 1037 (11th Cir. 2002) (per
curiam) (citation omitted). "Rule 15 of the Federal Rules of Civil Procedure
applies to civil actions brought under 28 U.S.C. § 2255. Application of Rule 15(c)
Mabry attempts to raise additional issues outside the scope of the COA that we do not
address. See Murray v. United States, 145 F.3d 1249
, 1251 (11th Cir. 1998) (per curiam) ("[W]e
will not decide any issue not specified in the COA . . . .").
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is reviewed for abuse of discretion." Davenport v. United States, 217 F.3d 1341
1343 n.4 (11th Cir. 2000) (citation and quotation marks omitted).
There is a one-year statute of limitations on § 2255 motions. 28 U.S.C.
§ 2255(f). If a prisoner amends his § 2255 motion after the statute of limitations
expires, the new claims are untimely unless they relate back under Rule 15(c) to
one of the claims in the original motion. Davenport, 217 F.3d at 1344. "â€˜Relation
back' causes an otherwise untimely claim to be considered timely by treating it as
if it had been filed when the timely claims were filed." Id. A pleading relates back
to the original pleading when the pleading asserts a claim "that arose out of the
conduct, transaction, or occurrence set outâ€"or attempted to be set outâ€"in the
original pleading." F ED. R. C IV. P. 15(c)(1)(b).
For a claim to relate back in a § 2255 proceeding, "the untimely claim must
have more in common with the timely filed claim than the mere fact that they arose
out of the same trial and sentencing proceedings." Davenport, 217 F.3d at 1344.
"Instead, in order to relate back, the untimely claim must have arisen from the
same set of facts as the timely filed claim, not from separate conduct or a separate
occurrence in both time and type." Id. (quotation marks and citations omitted).
"So long as the original and amended petitions state claims that are tied to a
common core of operative facts, relation back will be in order." Mayle v. Felix,
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545 U.S. 644
, 664, 125 S. Ct. 2562
, 2574 (2005). An amendment that serves to
expand facts or cure deficiencies in an original claim relates back to the original
claim. Dean v. United States, 278 F.3d 1218
, 1223 (11th Cir. 2002) (per curiam).
We discuss each of Mabry's claims in turn.
1. The government breached the plea agreement at sentencing.
Mabry now claims that the government breached the plea agreement at
sentencing by failing to recommend (1) a three-level reduction for acceptance of
responsibility and (2) a sentence at the low end of the advisory range. The closest
claim in the original motion to which these two new claims can relate back is
Mabry's claim that the government breached the plea agreement by failing to
adequately inform the district court of the details of his substantial assistance in a
§ 5K1.1 motion.
Mabry's new claims focus on the government's actions during the
sentencing hearing. His original claim, however, focused on the government's
§ 5K1.1 motion. Mabry's new claims do not relate back to the original claim
because the new claims involve entirely different alleged breaches. Mayle, 545
U.S. at 664, 125 S. Ct. at 2574 ("So long as the original and amended petitions
state claims that are tied to a common core of operative facts, relation back will be
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in order."). Thus, the district court did not abuse its discretion as to these claims.
2. Counsel rendered ineffective assistance by not seeking a sentencing cap in
the plea agreement.
The core operative facts of this claim are counsel's plea negotiations with
the government and the drafting of the plea agreement. But none of Mabry's
original claims have core facts in common with the sentencing-cap claim because
all of the original claims revolve around counsel's performance during or after the
sentencing and not during the plea negotiations. Thus, the district court did not
abuse its discretion by finding that Mabry's sentencing-cap claim does not relate
back to the original § 2255 motion.
3. Counsel rendered ineffective assistance by failing to alert the court that the
government was required to recommend a sentence at the low end of the
advisory guideline range.
The closest claim in Mabry's original § 2255 motion was that his counsel
rendered ineffective assistance by failing to bring to the district court's attention
that the government did not explain fully the details of Mabry's substantial
assistance. The original claim could be described as counsel being ineffective for
failing to bring to the court's attention that the government was not fulfilling its
obligations under the plea agreement. Or it could be described as a claim
surrounding a specific obligation in the plea agreement. Regardless, the
construction of the claims does not affect our analysis. Even under the broad
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construction, the claims do not have core facts that coincide. Accordingly, the
district court did not abuse its discretion by finding that the new claim does not
4. Counsel rendered ineffective assistance by failing to assist the sentencing
court in arriving at the correct guideline level before a potential departure
and misstating to the court that he had sold cocaine to a government
The closest claim in Mabry's original § 2255 motion was that his counsel
was ineffective for failing to bring to the district court's attention that the
government did not explain fully the details of Mabry's substantial assistance.
Although both claims involve counsel's performance at sentencing, they involve
very different aspects of counsel's performance. Since the original and new claims
have different core facts, the district court did not abuse its discretion by finding
that the new claim does not relate back.
5. Counsel rendered ineffective assistance by telling Mabry that he had waived
all of his rights to an appeal, even though Mabry's sentence appeal waiver
allowed him to appeal the overruling of the objection to the use of the prior
conviction to enhance Mabry's sentence.
The closest claim in the original motion was that counsel was ineffective by
allowing Mabry to forego his appellate rights without proper investigation, review,
and consultation. Although Mabry does not mention that specific claim in this
appeal, he asserts that the reply memorandum that he filed in the district court
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illustrated the extent of his counsel's ineffective assistance.
The government concedes that the new claim has a connection to the original
claim. It argues, however, that we implicitly determined that Mabry's new claim
lacked merit. The government notes that, in granting the COA, we determined that
Mabry failed to show that his counsel rendered ineffective assistance by allowing
him to waive his right to appeal because the plea agreement reserved Mabry's right
to appeal on certain issues.
We must, however, construe liberally a pro se petitioner's pleadings.
Gomez-Diaz v. United States, 433 F.3d 788
, 791 (11th Cir. 2005) (citation
omitted). In Dean, we found that a habeas petitioner's claim that "serve[d] to
expand facts or cure deficiencies in the original claims" was "not [an] entirely new
claim." 278 F.3d at 1223. By reversing the district court's finding in Dean that
the claim did not relate back to the original petition, we found that the district court
abused its discretion by finding that the claim does not relate back when it clarifies
an original claim. See id.
Construed liberally, Mabry's new claim clarifies that he was addressing
counsel's error in advising him that he could not appeal the sentence, even though
he specifically reserved the right to appeal the use of his prior convictions to
enhance his sentence. In light of Dean, the district court abused its discretion by
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finding that Mabry's new claim does not relate back to his original § 2255 motion.
Mabry's claim that counsel rendered ineffective assistance by incorrectly
advising Mabry that he could not appeal his sentence relates back to his original
§ 2255 motion. Thus, the district court abused its discretion by finding that claim
untimely. The court properly determined, however, that Mabry's other four claims
did not relate back to his original § 2255 motion. Accordingly, we affirm in part
and vacate and remand in part with instructions for the district court to consider the
one claim that relates back to the original § 2255 motion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
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