SUPPLEMENTAL MEMORANDUM OPINION ON MOTIONS TO AMEND
MICHAEL R. MERZ, Magistrate Judge.
This § 2255 action is before the Court on Defendant's Motions to Appeal (Doc. Nos. 156, 157) the Magistrate Judge's Decisions denying his motions to amend (Doc. Nos. 148, 153). Judge Rose has recommitted the motions to the Magistrate Judge for reconsideration in light of Defendant's appeals (Doc. No. 159).
First Motion to Amend
On July 1, 2013, Hunter wrote two letters to the undersigned which complained that he had not been able to get his appointed counsel to file a "short one page 6th amendment argument." (Doc. No. 147, PageID 2469 & 2470.) The Sixth Amendment argument is "I received 4 points for drug amount and 4 points for leadership that were found by the judge not the jury in violation of my 6th amendment rights." Id.
On July 5, 2013, the Magistrate Judge construed the correspondence as a motion to amend and treated it as if it had been made on November 1, 2012, the earliest possible date on which Hunter claimed in the letters he had asked counsel to file the motion. Treating the letters in this way eliminated any possible prejudice to Hunter from the fact that his counsel had not done what Hunter's claims he asked his counsel to do.
Having construed the correspondence as a motion to amend to add the Sixth Amendment claim as of November 1, 2012, the Magistrate Judge denied that motion because (1) it was untimely and (2) sought to add a claim on which relief could not be granted under § 2255 (Order, Doc. No. 148). Under Fed.R.Civ.P. 72(a), because this was a ruling on a nondispositive motion, Hunter had seventeen days to file objections or an appeal. That time expired August 1, 2013, but Hunter's appeal was not filed until August 28, 2013. However, the delay should be excused, as Hunter requests, because Doc. No. 148 was sent to Attorney Gounaris who was still attorney of record on July 5, 2013; Hunter apparently did not receive a copy directly until one was sent to him by the Clerk on August 16, 2013 (See Staff Note of August 16, 2013, and the Notice of Electronic Filing attached to the appeal as Exhibit 1, PageID 2539).
The appeal, however, should be denied because it is without merit.
Hunter's first objection is that the July 1, 2013, correspondence should not have been construed as a motion to amend, but read literally (Appeal, Doc. No. 156, PageID 2530-2532). In fact, Hunter argues, he had "long before decided this course of action [i.e. adding a 6th Amendment claim], but being pro se , did not have the skill, knowledge, or wherewithall [sic] to know the parameters or limitations of such action." Id. at PageID 2532. Hunter goes on to blame the delay on the "untimely appointment of counsel." Id. at 2533.
Hunter filed his § 2255 Motion on September 11, 2012 (Doc. No. 135) and his Motion for Appointment of Counsel on September 21, 2012 (Doc. No. 137). Counsel was appointed October 10, 2012 (Doc. No. 138). By that time the statute of limitations had already expired. Hunter was not entitled to appointment of counsel either by statute or the Constitution. If he had "long before" decided he wanted to make the Sixth Amendment claim, why didn't he include it himself when he filed the § 2255 Motion? The Sixth Circuit has long held that pro se status does not excuse missing court deadlines, even the short 45-day deadline for appealing to the Ohio Supreme Court. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). Hunter had eleven months from the denial of certiorari by the Supreme Court until he filed his § 2255 Motion September 11, 2012. He cannot successfully blame his failure to include the Sixth Amendment claim on a 20-day delay in appointment of counsel. The proposed Sixth Amendment claim is barred by the statute of limitations.
Even if the proposed Sixth Amendment claim were not time-barred, the Court should not allow the amendment because the proposed claim is without merit. In the order appealed from, the Magistrate Judge construed the proposed claim as being based on the Apprendi-Booker line of cases. Hunter agrees but says "owever, the layman's understanding of the Fifth and Sixth Amendments vis-à-vis indictment content and the ramifications of the punishment being only for what was alleged in the true bill of indictment, has never wavered from Petitioner's thoughts." (Doc. No. 156, PageID 2535). He then cites the Court to Alleyne v. United States . 570 U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which overruled Harris v. United States, 536 U.S. 545 (2002). Alleyne held that any fact that makes a defendant eligible for the mandatory minimum sentence for an offense is an "element" which must be submitted to the jury.
Alleyne has no impact on the proposed Sixth Amendment claim. The fact that made Hunter subject to the mandatory minimum - that the conspiracy was to distribute in excess of five kilograms of cocaine - was pled in the Indictment (Doc. No. 22, PageID 50-51; Doc. No. 27, PageID 59-60) and found beyond a reasonable doubt by the jury (Verdict, Doc. No. 51, PageID 192). The facts found only by Judge Rose which impacted Guideline Sentencing range were the four additional points for the drug amount (between 50 and 150 kilograms) and the four additional points for Hunter's leadership role. The Supreme Court has never held that facts relied on by a court to sentence within a prescribed statutory range must be included in the indictment and submitted to the jury. In fact, in United States v. Booker , 543 U.S. 220 (2005), the Court found the mandatory nature of the Sentencing Guidelines unconstitutional under Apprendi-Blakely , but saved them as advisory. And in Oregon v. Ice, 555 U.S. 160, 169 (2009), it held that state trial judges could make the factual determinations on which to base consecutive, as opposed to concurrent, sentences without submitting the question to the jury.
Hunter argues that he has a right to make this claim even if the chance of success is "very remote and unlikely." (Doc. No. 156, PageID 2536), citing Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). But Scheuer was decided when the pleading standard was governed by Conley v. Gibson , 355 U.S. 41, 45-46 (1957). Conley has now been overruled on precisely this point and replaced with the more demanding standard that a pleaded claim must be plausible. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). The standard for amendment under Fed.R.Civ.P. 15 continues to be that set in Foman v. Davis , 371 U.S. 178 (1962): the amendment should not be allowed if the claim made in the amendment could not survive a motion to dismiss for failure to state a claim.
This Court can grant relief on a § 2255 motion only if the judgment of conviction violates the United States Constitution. There was no Sixth Amendment violation in having Judge Rose make the Sentencing Guidelines findings of which Hunter complains, so the proposed additional Sixth Amendment ground for relief does not state a claim upon which ...