United States District Court, D. Nevada
J. DAWSON, UNITED STATES DISTRICT JUDGE
are two motions pending before the Court. First is Markette
Tillman's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 (#1098). The government
timely responded (#1138), and Tillman replied (#1139). Before
the Court could decide Tillman's motion to vacate, he
moved to amend that motion (#1140). The Court performed an
initial review of Tillman's motion to vacate and his
motion to amend in late 2018. Following that review, the
Court waived the attorney-client privilege between Tillman
and his trial counsel, Lance Maningo and James Oronoz. That
order directed the attorneys to provide the government with
affidavits addressing Tillman's claims, which they did
(#1185). The Court also ordered the government to respond to
Tillman's motion to amend and to supplement its initial
opposition, which it did (##1186, 1187). Tillman has not
initial § 2255 petition brought four causes of action.
Three are claims of ineffective assistance of counsel leading
up to his trial for charges under the Racketeer Influenced
and Corrupt Organizations Act (“RICO”). The other
is a claim for a violation of Tillman's Sixth Amendment
right to the counsel. Tillman seeks to add another
ineffective assistance of counsel claim arising out of his
attorneys' performance at his sentencing. The parties
agree that Tillman's new claim is untimely. His motion to
amend therefore turns on whether his new ineffective
assistance of counsel claim relates back to his initial
claims even though the claim arises out of an entirely
different stage in the proceeding than the others. If it does
not relate back, Tillman's new claim is time-barred.
Tillman's motion to vacate, on the other hand, turns on
whether he received ineffective assistance of counsel and
whether he knowingly and voluntarily entered into a plea
agreement that waived certain appellate rights. As for
Tillman's motion to amend, the Court finds that
Tillman's new claim arises out of facts that differ in
both time and type from the claims in his initial petition.
The new claim, therefore, does not relate back. The Court
further finds that Tillman has not shown that his trial
counsel was constitutionally deficient, and to the extent
that Tillman's petition attacks the waiver of his
appellate rights, that waiver was knowing and voluntary.
Accordingly, the Court denies Tillman's motion to vacate
January 20, 2004, security guard Brian Wilcox was shot and
killed while patrolling “the Jets, ” a housing
complex in Las Vegas, Nevada. In the fall of 2008, Markette
Tillman and nine others were indicted for the murder and
various conspiracy and drug charges under the Racketeer
Influenced and Corrupt Organizations Act
(“RICO”). See Indictment 2-3, 10, ECF No. 1. The
indictment identifies a street gang called the “Playboy
Bloods” as the criminal organization under RICO.
Id at 2, 27. It alleges that the gang operated an
extensive drug ring and engaged in acts of violence to
further that enterprise. Id at 3-4. The government
brought additional charges against Tillman via a superseding
indictment in 2012. Superseding Indictment, ECF No. 650. In
all, Tillman faced nineteen charges arising out of his
involvement with the Playboy Bloods including conspiracy to
engage in an illicit organization, various drug charges, and
the use of a firearm during a crime of violence resulting in
Wilcox's murder. Id
RICO-murder charge against Tillman made this a capital case,
which qualified Tillman for learned counsel. Judge Robert
Jones, who was originally assigned to this case, appointed
California attorney, John Grele, as learned counsel on
Tillman's behalf. Order Appointing Counsel, ECF No. 123.
Although the government ultimately did not pursue the death
penalty against Tillman, Grele continued to represent him
until February of 2013 when a dispute arose over delayed
payment of Grele's CJA vouchers. Order of Disappointment,
ECF No. 807. Judge Jones held a hearing to resolve the
dispute over the vouchers. Following that hearing, Judge
Jones issued a written order that accused Grele of
“extort[ing] the court by delay” and
“attempting to manufacture an ineffective assistance of
counsel claim on [Tillman's] behalf.” The Judge
then disappointed Grele over Tillman's objections and
appointed Lance Maningo and James Oronoz in Grele's
rejected various plea offers while Maningo and Oronoz
represented him, opting instead to go to trial as quickly as
possible. Mot. to Vacate 7-7B, ECF No. 1098. At issue here is
an agreement that would have carried an eighteen-year
sentence. Id Tillman claims that he rejected that
plea deal because he believed he could clear his name of the
murder charge at trial. Id at 7B. After opening
statements, however, Tillman had a change of heart and
entered into a plea agreement. Tillman agreed to plead guilty
to two of the nineteen counts of the indictment and waived
his appellate rights except for the unwaivable right to
appeal ineffective assistance of counsel. Plea Agreement 2-3,
ECF No. 1018. In exchange, the government recommended a
twenty-three-year sentence. Id at 11. The Court
accepted the agreement and sentenced Tillman to twenty-three
years. Judgment of Conviction 2, ECF No. 1046.
after sentencing, Tillman appealed his conviction to the
Ninth Circuit. The Ninth Circuit dismissed the appeal, citing
the valid appeal waiver in Tillman's plea agreement.
Order Dismissing Appeal, ECF No. 1073. Having lost his
appeal, Tillman now moves to set aside his conviction under
28 U.S.C. § 2255, claiming that the Court violated his
Sixth Amendment right to counsel when it dismissed attorney
John Grele against Tillman's wishes. Relatedly, Tillman
argues that Maningo and Oronoz provided constitutionally
U.S.C. § 2255 allows a custodial defendant to challenge
his conviction on the grounds that it “was imposed in
violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). Each of
Tillman's claims arise out of his Sixth Amendment right
to counsel, which guarantees effective assistance of counsel
at all “critical stages of a criminal
proceeding.” Lafler v. Cooper, 566 U.S. 156,
165 (2012). A defendant's right to counsel is violated
where he is deprived of counsel entirely or where his
counsel's performance was constitutionally defective.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
To demonstrate that counsel was constitutionally inadequate,
the defendant must show two things: (1) that counsel's
representation “fell below an objective standard of
reasonableness;” and (2) that the defendant suffered
prejudice as a result. Id; Lee v. United
States, 137 S.Ct. 1958, 1964 (2017). In essence, Tillman
must demonstrate that his trial counsel made errors so
serious that his conviction is not reliable.
Strickland, 466 U.S. at 687.
2255 requires an evidentiary hearing unless the record
“conclusively show[s] that the prisoner is entitled to
no relief.” 28 U.S.C. § 2255; United States v.
Burrows, 872 F.2d 915, 917 (9th Cir. 1989). If the
petition is based upon conduct that happened outside the
courtroom and off the record, the Court must hold an
evidentiary hearing. Burrows, 872 F.2d at 917.
However, the Court may summarily dismiss the petition if the
movant does not state a claim for relief or if his claims are
frivolous or palpably incredible. Id. citing
Baumann v. United States, 692 F.2d 565, 570-71 (9th
Cir. 1982). Finally, because the Court presided over
Tillman's trial, it may supplement the record with its
own recollection of the disputed events and summarily dismiss
the petition. Blackledge v. Allison, 431 U.S. 63, 74
motion to vacate alleges four constitutional deprivations
that he claims warrant overturning his conviction. There are
three ineffective assistance of counsel claims and one claim
for a violation of his Sixth Amendment right to counsel. Each
claim arises out of Tillman's representation leading up
to trial and his change of plea. Tillman also seeks leave to
amend his petition to add another ineffective assistance of
counsel claim stemming from of his representation at
sentencing. The Court turns first to Tillman's motion to
Motion to Amend
new claim alleges that he received ineffective assistance of
counsel at sentencing because his attorneys did not request
that Tillman receive credit for time served in state custody.
Tillman's claim is untimely. Section 2255 imposes a
one-year limitations period on petitions to vacate a
sentence. 28 U.S.C. § 2255(f). That one-year period
began on the date Tillman's judgment of conviction became
final. Id § 2255(f)(1). Here, the clock started
on May 18, 2015, when the Ninth Circuit dismissed
Tillman's appeal. Order of Dismissal, ECF No. 1065.
Tillman did not bring his additional claim until February 28,
2017-well outside the statutory period to do so.
does not dispute that the claim is untimely. Rather, he
argues that amendment is appropriate because the claim
relates back to the events in his original petition, which
was timely. A petitioner may amend its petition once as a
matter of course prior to a responsive pleading. Fed.R.Civ.P.
15(a); Mayle v. Felix, 545 U.S. 644, 655 (2005).
Once the government has responded, however, the movant may
only amend with the government's consent or with the
Court's permission. Mayle, 545 U.S. at 663-64.
When, as here, the movant is no longer eligible to amend as a
matter of course, the Court applies the Federal Rules of
Civil Procedure to determine whether the proposed amendment
is appropriate. See Rules Governing § 2255
Proceedings, R. 12, 28 U.S.C. § 2255 (applying the
Federal Rules of Civil Procedure to § 2255 proceedings).
Whether amendment is ...