United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING DEFENDANT'S
REQUEST FOR SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION UNDER 28
U.S.C. § 2255 (DIET. NO. 273)
KATHERINE A. ROBERTSON UNITED STATES MAGISTRATE JUDGE
8, 2018, the trial judge denied James Melvin's
("Petitioner") 28 U.S.C. § 2255 petition to
vacate, set aside, or correct his sentence (Dkt. No.
271). Petitioner, proceeding pro se, has now
moved under Fed.R.Civ.P. 15(d) to supplement his petition
based on United Slates v. Townsend, 897 F.3d 66 (2d
Cir. 2018) (Dkt. No. 273). The United States of America
("the government") has opposed Petitioner's
motion (Dkt. No. 276). The trial judge referred the motion to
this court for a report and recommendation (Dkt. No. 274).
See 28 U.S.C. §636(b)(1)(b); Fed.R.Civ.P. 72; Rule 10,
Rules Governing Section 2255 Proceedings. For the reasons
detailed below, the undersigned recommends that
Defendant's motion be DENIED.
procedural history of the case is pertinent to the
disposition of Petitioner's motion. On May 20, 2010, a
grand jury sitting in the United States District Court for
the District of Massachusetts returned a single count
indictment charging Petitioner with distributing cocaine base
or possessing cocaine base with intent to distribute (Dkt.
No. 2). See 21 U.S.C. § 841(a)(1). The government filed
an information pursuant to 21 U.S.C. § 851 before
Petitioner's first trial, which commenced on November 28,
2011 before the Honorable Nathaniel M. Gorton and a jury
(Dkt. No. 97). After the jury found Petitioner guilty, Judge
Gorton sentenced him to 180 months. in prison and six years
of supervised release (Dkt. Nos. Ill. 127). On September 17,
2013, Petitioner's conviction was vacated and the case
was remanded for a new trial. See United States v.
Melvin, 730 F.3d 29, 40 (1st Cir. 2013).
retrial in March 2014, a jury again found Petitioner guilty
and Judge Gorton imposed a sentence of 168 months
imprisonment and six years of supervised release (Dkt. Nos.
201, 206, 207, 208, 212, 225). In calculating
Petitioner's sentence, the trial judge found that he was
a career offender under United States Sentencing Guidelines
("U.S.S.G." or "Guidelines") §
4B1.2(b) based on three predicate offenses: a 1998 criminal
sale of a controlled substance in the third degree, in
violation of N.Y. Penal Law § 220.39 (McKinney)
(hereinafter "New York conviction"); a 2002
conviction for possession of contraband in prison; and 2005
federal convictions for conspiring to possess narcotics with
intent to distribute and conspiring to commit extortion
(Sent. Tr.: 11-12).
First Circuit affirmed Petitioner's conviction, see
United States v. Melvin, 628 Fed.Appx. 774, 778 (1st
Cir. 2015), and the Supreme Court denied the petition for a
writ of certiorari on February 29, 2016 (Dkt. No. 246). See
Melvin v. United States, 136 S.Ct. 1236 (2016).
January 12, 2017, Petitioner moved to vacate, set aside or
correct the sentence pursuant to 28 U.S.C. § 2255 (Dkt.
No. 247). Judge Gorton ordered the government to respond
(Dkt. No. 248). See 28 U.S.C. § 2255(b); Rules 4(b)
& 5(a), Rules Governing Section 2255 Proceedings. After
the government filed its opposition and Petitioner replied,
Judge Gorton referred the motion to the undersigned for a
report and recommendation (Dkt. Nos. 259, 260, 264). See Rule
5, Rules Governing Section 2255 Proceedings. The court issued
its report recommending that Petitioner's motion be
denied and that no certificate of appealability should -t
issue (Dkt. No. 270). Judge Gordon adopted the report and
recommendation on May 8, 2018 (Dkt. No. at 271). See
United States v. Melvin, No. 10-cr-30017-NMG, 2018
WL 2134028, at *16 (D. Mass. May 8, 2018). Petitioner filed
the instant motion to supplement his § 2255 petition on
October 29, 2018 (Dkt. No. 273). The government's
opposition to Petitioner's motion contends that the
motion is barred by procedural hurdles and, to the extent the
court reaches the merits of Petitioner's claim, it should
not succeed (Dkt. No. at 276).
petitioner is entitled to relief under § 2255 of the
Antiterrorism and Effective Death Penalty Act
("AEDPA") if the petitioner's sentence (1)
"was imposed in violation of the Constitution or laws of
the United States;" or (2) was imposed by a court that
lacked jurisdiction; or (3) "was in excess of the
maximum authorized by law;" or (4) was "otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
See David v. United States, 134 F.3d 470, 474 (1st
Cir. 1998) (citing Hill v. United States, 368 U.S.
424, 426-27 (1962)). "The burden is on the Petitioner to
make out a case for section 2255 relief." Id.
(citing Mack v. United States, 635 F.2d 20, 26-27
(1st Cir. 1980)). "Where, as here, a petitioner is
acting pro se, his petition must be 'liberally construed
... [and] a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal
pleadings drafted by lawyers.'" United States v.
Robinson, 227 F.Supp.3d 141, 146 (D. Mass. 2016)
(alteration in original) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)). Petitioner seeks leave
to supplement his previous § 2255 petition to assert,
based on Townsend, that he is entitled to correction of his
sentence because his New York conviction does not qualify as
a predicate controlled substance offense that qualified him
as a career offender under § 4B1.2(b) of the Guidelines
(Dkt No. 273 at 1).
The relevant sentencing guideline instructs that a defendant
qualifies as a career offender if (i) he is 18 years old or
older at the time he commits the offense of conviction; (ii)
that offense is a crime of violence or a controlled substance
offense; and (iii) he has at least two prior felony
convictions for crimes of violence or controlled substance
United States v. Willings, 588 F.3d 56, 57 (1st Cir.
2009) (citing U.S. SENTENCING GUIDELINES MANUAL § 4B
1.1(a) (U.S. SENTENCING COMM'N 2016)). As used in §
4B1.1(a), "controlled substance offense"
means an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
 the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit
substance) or  the possession of a controlled substance
(or a counterfeit substance) with intent to manufacture,
import, export, distribute, or dispense.
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(b).
a "request for habeas relief challenging the validity
of... career offender enhancement under the Sentencing
Guidelines falls squarely under § 2255,"
Alexander v. Spaulding, Civil Action No.
18-cv-11100, 2019 WL 1027925, at *3 (D. Mass. Mar. 4, 2019),
the government cites the following procedural roadblocks that
bar the court from granting Petitioner's motion: (1) the
motion is not a supplemental pleading under Fed.R.Civ.P.
15(d) but, instead, is an impermissible second § 2255
petition over which the court lacks jurisdiction; (2) to the
extent the court has jurisdiction to consider
Petitioner's motion, the ground on which it is based was
decided by the Court of Appeals for the First Circuit on the
appeal of his conviction and, therefore, has become the law
of the circuit; (3) to the extent the principles of the law
of the circuit doctrine do not bar the claim, it is subject
to procedural default; and (4) if the motion is viewed as a
motion to alter or amend the § 2255 judgment under
Fed.R.Civ.P. 59(e), the court lacks jurisdiction to entertain
the motion because it was filed late. The court will address
each of the government's procedural arguments.
Petitioner's motion does not qualify as a supplemental
pleading under Rule 15(d) but, instead, is a second or
successive § 2255 motion which should be dismissed for
want of jurisdiction.
relies on Fed.R.Civ.P. 15(d) as the source of his motion
(Dkt. No. 273). "Federal Rule of Civil Procedure 15
governs amendments to habeas petitions in a § 2255
proceeding." United States v. Ciampi, 419 F.3d
20, 23 (1st Cir. 2005) (citing United States v.
Duffus, 174 F.3d 333, 336 (3d Cir. 1999)). Rule 15(d)
permits a court to grant "a party [leave] to serve a
supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented." Fed.R.Civ.P. 15(d).
Although Plaintiff his original petition on January 12, 2017
and Townsend, the case upon which he now relies, was decided
by the Court of Appeals for the Second Circuit on July 23,
2018, the trial judge issued the judgment denying the
original § 2255 petition on May 8, 2018, before the
Townsend decision was issued (Diet. Nos. 247, 271). See
Townsend, 897 F.3d at 66; Melvin, 2018 WL 2134028, at *1.
Inasmuch as Judge Gorton denied Petitioner's initial
§ 2255 petition, did not issue a certificate of
appealability, and there is no appeal currently pending, the
denial of Petitioner's initial § 2255 petition was a
final adjudication (Dkt. Nos. 270, 271). See Melvin, 2018 WL
2134028, at *16; Santiago-Vazquez v. United States, CIV.
No. 06-1987(PG), Crim. No. 97-071(PG), 2010 WL 2207750,
at *1 (D.P.R. May 28, 2010); 28 U.S.C. §§
2253(c)(1)(B), 2255(d); Rule 11(a), Rules Governing Section
2255 Proceedings. Supplementation of a previously adjudicated
§ 2255 petition is not permitted. See United States
v. Hames, 431 Fed.Appx. 846, 847 (11th Cir. 2011) (per
curiam) (unpublished) ("[A] motion under § 2255 can
only be amended under Rule 15 before judgment is issued; Rule
15 has no post-judgment application.") (citing
Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d
1327, 1344-45 (11th Cir. 2010)); Whiting v. United
States, No. 97-2033, 1998 WL 1281294, at *2 n.1 (1st
Cir. June 26, 1998) (unpublished table decision) (affirming
the district court's dismissal of a post-adjudication
motion to amend a § 2255 petition as a successive
petition). The motion's caption as a request to
"supplement" the original petition does not alter
this determination (Dkt. No. 273). See United States v.
Gwathney, Nos. CV 07-0899 WJ/LAM, CR 04-1553 WJ, 2009 WL
10648259, at *1 (D.N.M. Sept. 16, 2009) ("The title
given to a motion by the movant is not dispositive in
determining whether the motion is a second or successive
§ 2255 motion.") (citing United States v.
Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 2006)).
second § 2255 petition, Petitioner's motion should
be denied because Petitioner failed to comply with the
procedural requirements mandated by the AEDPA. "[A]
petitioner may not file a second or successive petition under
§ 2255 without first obtaining permission from the court
of appeals." Nascimento v. United States, Cr.
No. 03-10329-PBS, 2012 WL 1004316, at *3 (D. Mass. Mar.
22, 2012), appeal docketed, No. 13-8021 (1st Cir. June 28,
2013) (citing 28 U.S.C. § 2255(a), (e), (h)). See also
28 U.S.C. § 2244(b)(3)(A) ("Before a second or
successive [§ 2255 petition] is filed in the district
court, the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to
consider the application."); Rule 9, Rules Governing
Section 2255 Proceedings ("Before presenting a second or