United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. Van Bokkelen United States District Judge.
matter is before the Court on Lamar Sanders's motion
under 28 U.S.C. § 2255 to have his sentence set aside
(DE 324). He filed his petition pro se, but later
counsel appeared for him and filed a motion for leave to file
a supplemental § 2255 motion (DE 345).
questions before the Court are whether Sanders should be
allowed to file a supplemental § 2255 motion, whether an
evidentiary hearing is required, and, if not, whether Sanders
is entitled to any relief under § 2255.
other things, Sanders claims he was denied effective
assistance of counsel because his attorney didn't raise a
Speedy Trial Act challenge. Therefore the Court will recount
the procedural history of this case in some detail.
March 5, 2008, Sanders, along with his co-defendant, Ralphael
Scott, was indicted on a charge of kidnapping R.E., a child
under the age of eighteen, and Hobbs Act extortion. Trial was
set for May 12, 2008, with pretrial motions due on April 18.
On April 15, Sanders moved for additional time to file
pretrial motions and for a continuance of the trial. The
motions were granted and the trial was reset for July 21,
2008. Sanders filed a motion to suppress on May 27. When the
motion was fully briefed, the Court vacated the trial date
and the motion was set for a hearing to be held on August 7,
before the hearing on the motion to suppress was to begin,
Sanders moved to continue it and it was reset for October 7,
2008. On the scheduled date, Sanders asked for time to hire
new counsel. The motion hearing was reset to November 13,
2008, but Sanders's new counsel moved for a continuance
and the hearing was reset to January 12, 2009. The hearing
began on that date, resumed on March 10, 2009, and concluded
on May 4, 2009. A schedule for the filing of supplemental
briefs was set and extended once at Sanders's request and
once at the Government's, such that Defendants' reply
briefs were due August 20.
1, 2009, the Court set the case for trial on September 21,
2009. Thereafter, Sanders filed three motions for
continuances of the trial, ultimately resulting in a trial
setting of June 7, 2010. On the morning of June 7,
Sanders's attorney withdrew his appearance. The Court
vacated the trial date, which was reset to October 25, 2010.
Once again Sanders moved to continue the trial and it was
reset to January 18, 2011, when the trial began.
jury found Sanders guilty on both counts of the indictment
and he was sentenced to 25 years on the kidnapping count-the
statutory minimum for child kidnapping-and 20 years on the
extortion count, with the two sentences to be served
concurrently. He appealed but the Seventh Circuit Court of
Appeals affirmed both his conviction and sentence.
December 2014, after his petition for a writ of certiorari
was denied, Sanders filed a timely pro se motion under §
2255. In May 2015, an attorney entered her appearance for
Sanders and filed a motion for an extension of time to file
an amended § 2255 motion. The Court set a deadline of
September 18, 2015, which was not met. The Court set a new
deadline of February 29, 2016, but Sanders filed a motion for
an extension and was given until March 14, 2016, to file an
amended motion. When that date passed with neither an amended
motion nor a request for an extension having been filed, the
Court ordered the Government to respond to Sanders's pro
se motion, which it did on August 1, 2016. Sanders did not
reply, but on August 18, 2018, he moved for leave to file a
supplemental § 2255 motion, asserting entirely new
grounds for relief.
Motion for Leave to File Amended Motion
Government maintains that Sanders should not be permitted to
supplement his § 2255 motion so long after his original
motion was filed and that his new claim lacks merit. The
Court agrees with the Government's first contention and
so does not reach its second.
Rule 12 of the Rules Governing Section 2255 Proceedings, the
Federal Rules of Civil Procedure are generally applicable to
§ 2255 motions. Federal Rule of Civil Procedure 15
governs amended and supplemental pleadings. A § 2255
motion is the functional equivalent of a complaint, which is
a pleading. Under Rule 15, leave of court is required because
Sanders's motion was filed more than 21 days after the
litigant should not be granted leave to amend if to do so
would be futile. Arreolat v. Godnez, 546 F.3d 788,
796 (7th Cir. 2008). That is the case here, because the claim
Sanders seeks to assert in an amended filing is a completely
new claim that is untimely under § 2255(f). Moreover,
such an amendment could not relate back to the date of his
original motion because the proposed claim doesn't arise