United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, Judge.
early 2018, Defendant filed a motion and amended motion for a
new trial in his criminal case (No. 12-cr-054-2). (Docs. 227,
228). Over a year later, he requested that the
Court characterize them, together, as a motion for §
2255 relief (Doc. 229) (collectively with Docs. 227 and 228,
the “first motion”). On May 14, 2019,
days before this latter filing in his criminal case,
Defendant had filed a § 2255 motion in the United States
District Court for the Western District of Kentucky.
(See W.D. Ky. No. 3:19-cv-380-DJH). After
determining that the challenged sentence was imposed in this
Court, the Kentucky district court transferred
Defendant's second § 2255 motion (no. 19-cv-428,
Doc. 1, the “second motion”) to the Southern
District of Ohio. (No. 19-cv-428, Doc. 3). The parallel
proceedings were docketed under the new civil case number
with reference to his criminal case, but they were not filed
in his criminal case or otherwise referenced therein, as is
ordinarily the practice in this district upon the filing of a
§ 2255 motion. As a result, the Court entered an Order
denying the § 2255 relief in Defendant's criminal
case (Doc. 230), while the second motion in case number
19-cv-428 remained pending.
filings forming the substantive basis for the first motion
(Docs. 227, 228) predate the second motion by over a year.
But while the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, Pub.L. No. 104-132, 110 Stat.
1214, §§ 104-06, placed significant restrictions on
“second or successive” applications under §
2255, see § 2255(h), it does not apply,
categorically, to all second-in-time applications.
Magwood v. Patterson, 561 U.S. 320, 331-32 (2010).
In this case, where the second motion was filed prior to
adjudication of the first, and given the unusual
administrative issues related to the Kentucky filing, the
Court does not find it “second or successive” as
used in AEDPA. See 28 U.S.C. §§ 2244(b),
2255(h); In re Smith, 690 F.3d 809, 809 (6th Cir.
2012) (“A district court has jurisdiction to consider
numerically second petitions that are not ‘second or
successive' . . . .”) (quoting 28 U.S.C. §
Court had considered the second motion prior to adjudicating
the first, the Court would have considered the second motion
as a motion to amend the first motion. Clark v. United
States, 764 F.3d 653, 659 (6th Cir. 2014) (“A
habeas petition submitted during the pendency of an initial
§ 2255 motion should be construed as a motion to amend
the initial motion.”) (quoting Ching v. United
States, 298 F.3d 174, 175 (2d Cir. 2002)). Federal Rule of
Civil Procedure 15 governs amendments to § 2255 motions.
Oleson, 27 Fed.Appx. at 568 (6th Cir. 2001). While
the standard is liberal to promote the interests of justice,
it is limited by several factors that a court may consider in
exercising its discretion as to proposed amendments. See
Id. at 569; Fed.R.Civ.P. 15(a)(2). Courts may consider
“undue delay in filing, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to
cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility of amendment.”
Id. (quoting Coe v. Bell, 161 F.3d 320, 341
(6th Cir. 1998)). “Amendment of a complaint is futile
when the proposed amendment would not permit the complaint to
survive a motion to dismiss.” Wright v. United
States, No. 2:16-CR-00059, 2018 WL 1899293, at *2 (S.D.
Ohio April 20, 2018) (quoting Miller v. Calhoun
Cnty., 408 F.3d 803, 817 (6th Cir. 2005)), rec.
adopted, 2018 WL 3410057 (S.D. Ohio July 13, 2018)). The
overarching purpose of the Rule 15 is “to ensure that
cases are decided on their merits.” Oleson, 27
Fed.Appx. at 569 (citation omitted).
more voluminous, Defendant's second motion largely
follows in the tracks of his first motion. The content
otherwise consists of allegations that are procedurally
defaulted or that are “palpably incredible” or
“patently frivolous or false” such as to warrant
summary dismissal. Blackledge v. Allison, 431 U.S.
63, 76 (1977) (quoting Machibroda v. United States,
368 U.S. 487, 495 (1962) and Herman v. Claudy, 350
U.S. 116, 119, 76 S.Ct. 223, 100 L.Ed. 126 (1956)). In either
case, allowing the amendment would be futile and the
interests of justice are therefore not frustrated by the
Court exercising its discretion to deny the
amendment. The Court summarizes, below, the 49
“grounds” asserted in Defendant's second
• Ground one contains a “statement of the
case” that does not state a claim.
• Ground two asserts actual innocence and the failure by
the Plaintiff to produce urine test manuals seized during
Defendant's investigation. The former rests on the
allegations raised in Defendant's first motion
(see Doc. 227, PAGEID #: 2773-77) and is, in any
event, supported only by conclusory allegations. (See,
e.g., No. 19-cv-428, Doc. 1-2, PAGEID #: 27
(“Conviction was assured by mischaracterization and
fabrication of evidence, lack of adversarial testing because
of conflict of the defense counsel and public opinion that
every physician treating pain is a pill-miller.”));
Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972)
(“Except for conclusional averments, his petition
supplied no factual material upon which to test the validity
of his conclusions. Such a pleading does not call for an
evidentiary hearing.”) (citations omitted);
O'Malley v. United States, 285 F.2d 733, 735
(6th Cir. 1961) (“Conclusions, not substantiated by
allegations of fact with some probability of verity, are not
sufficient to warrant a hearing.”). Defendant's
first motion raised the latter- allegations related to urine
test manuals. (See Doc. 227, PAGEID #: 2787).
• Ground three is listed as “inquisition”
and includes a narrative about the history of pain treatment.
(No. 19-cv-428, Doc. 1-2, PAGEID #: 34-36). The Court cannot
discern an asserted federal basis for relief from
• Ground four asserts the prosecution's lack of
probable cause. The allegations here appear to largely
restate allegations made in Defendant's first motion.
(See Doc. 227, PAGEID #: 2773-79). Defendant also
includes a narrative regarding his dissatisfaction with his
co-defendant's alleged conduct during the investigation
and trial, but the Court cannot discern an asserted federal
basis for relief from his sentence.
• Ground five asserts that the prosecution withheld
various evidence. For much of the evidence referenced,
Defendant does not point to its exculpatory value at all or
it is redundant (e.g., urine test manuals). Where
Defendant does attempt to connect the withheld evidence to
prejudice, it is significantly overstated. (See,
e.g., No. 1:19-cv-428, Doc. 1-2, PAGEID 41-42 (Defendant
argues that allegedly withheld evidence would have shown that
he saw fewer patients per day than suggested at trial, but he
does not demonstrate how this evidence would have necessarily
impacted the result in his case)). Regardless, these concerns
were not raised on direct appeal. Having shown no cause for
failing to raise this issue, the claim would be procedurally
defaulted and an amendment to the first motion on that basis
would be futile. Smith v. Brunsman, 626 F.Supp.2d
786, 796 (S.D. Ohio 2009) (leave to amend denied where new
claims would have been procedurally defaulted under state law
and the defendant demonstrated neither cause for the default
nor resulting prejudice); Turner v. Lindamood, No.
3:16-cv-2593, 2017 WL 5885276, at *7 (M.D. Tenn. Nov. 29,
2017) (“Because the new claims were never raised in the
state court . . . and because the petitioner has failed to
allege, not to mention establish, cause for his failure to
raise the new claims . . ., the new claims are procedurally
defaulted and amendment would be futile.”).
• Ground six asserts lack of transcripts. Defendant
acknowledges that this concern has already been raised in
prior motions. (See No. 19-cv-428, Doc. 1-2, PAGEID
• Ground seven asserts lack of adversarial process. To
the extent that this asserts a claim, Defendant appears to
challenge the adequacy of his trial counsel's assistance
in the same manner as was done in his first motion. (See,
e.g., Doc. 227, PAGEID #: 2790-91).
• Grounds eight and nine assert prosecutorial
misconduct. Defendant raised this in his first motion.
(See Id. at PAGEID #: 2779).
• Ground ten expresses general discontent with
Defendant's prosecution, but the Court does not discern
an asserted federal basis for relief from Defendant's
• Ground eleven raises issues with the prosecution's
medical expert. To the extent that this presents a claim,
Defendant appears to challenge the adequacy of his trial
counsel's assistance in the same manner as was done in
his first motion. (See, e.g., Doc. 227, PAGEID #:
• Ground twelve asserts that the prosecution withheld
Plaintiff's medical expert's report to the Ohio State
Pharmacy Board. He argues that it contains exculpatory
information, but the Court fails to see this same value from
Defendant's description. Moreover, it was not raised on
direct appeal and Defendant cites no cause for such ...