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United States v. Gensemer

United States District Court, D. Nevada

October 28, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHARLES EDWARD GENSEMER, Defendant/Petitioner.

          ORDER

          Kent J. Dawson United States District Judge

         There are several motions pending before the Court, all of which are related to Charles Edward Gensemer's proposed Motion to Vacate or Correct his Sentence under 28 U.S.C. § 2255. The first is Gensemer's Motion to Extend Time to file his petition (ECF No. 1554). The government responded (ECF No. 1555), but Gensemer did not reply. Next is Gensemer's Motion for Leave to Amend and/or File a supplemental memorandum in support his § 2255 petition (ECF No. 1559). Gensemer attached to that motion his petition to vacate or correct his sentence under 28 U.S.C. § 2255. Although that petition was filed with this Court on February 9, 2017, it was not docketed. To date, the Court has not ordered the government to respond to Gensemer's petition. The remaining motions are Gensemer's requests for documents (ECF Nos. 1563, 1573), status checks (ECF No. 1568), and motions to supplement his proposed petition (ECF Nos. 1574, 1579).

         Charles Edward Gensemer is currently serving a 420-month total sentence after being convicted under the Racketeer Influenced and Corrupt Organizations Act (RICO) for conspiracy to engage in a corrupt organization, drug conspiracy, and possession of a firearm during a drug trafficking offense. Gensemer's conviction was affirmed on appeal, and he now moves to vacate or correct his sentence under 28 U.S.C. § 2255. During the year after the Ninth Circuit affirmed Gensemer's conviction, Gensemer's detention facility was placed on security lock down twice. During those lock downs, Gensemer lost access to the prison library, which delayed the preparation of his § 2255 petition. Fearing that he would miss his filing deadline, Gensemer requested a sixty-day extension to file his § 2255 petition (ECF No. 1554). The government opposed the extension, arguing that the Court lacked jurisdiction to preemptively extend the time to file until Gensemer actually filed his motion. Rather than respond, Gensemer drafted a bare-bones version of his motion to vacate and filed it timely. Gensemer now moves for leave to amend his rushed petition and supplement it with the version he had prepared and saved on the prison computer (ECF No. 1579).

         The Court has reviewed Gensemer's proposed petition and finds that at least some of his claims relate back to the claims in his original petition. Further, after performing an initial review of Gensemer's remaining claims, the Court finds that it cannot conclude that he is not entitled to the relief he seeks. Accordingly, the Court orders the government to respond to the claims below within thirty days of the entry of this order. Given that those claims involve allegations of ineffective assistance of counsel, the attorney-client privilege in 2:07-0145-KJD-PAL between Charles Gensemer and his former attorney, Ozzie Fumo, shall be deemed waived for all purposes related to Gensemer's § 2255 motion to vacate. Mr. Fumo shall provide the government with affidavits concerning all information known to him relating to the allegations in Gensemer's § 2255 petition within fourteen days of entry of this order.

         I. Background

         On July 10, 2007, Gensemer and thirteen other alleged Aryan Warriors were indicted for conspiracy to engage in a Racketeer Influenced Corrupt Organization (RICO). The indictment included conspiracy charges, drug offenses, and several violent assaults. See Indictment, ECF No. 1. The government later superseded the indictment to add additional drug and firearm-possession charges. Superseded Indictment, ECF No. 181. Gensemer elected to go to trial, and on July 6, 2009, a jury found him guilty on count one (RICO conspiracy), count ten (drug conspiracy), and count fourteen (possession of a firearm during a drug trafficking offense). Judgment 1, ECF No. 1211. In December of 2009, Gensemer was sentenced to 240 months on count one, 360 months on count ten, and 60 months on count fourteen. Gensemer's 240-month and 360-month sentences run concurrently, while his 60-month sentence runs consecutively. His total term of incarceration is 420 months. Id. Following his sentencing, Gensemer was assigned to FCC Pollock, a correctional institution in Pollock, Louisiana.

         Gensemer timely appealed, and the Ninth Circuit affirmed his conviction. See Order Affirming Conviction, ECF No. 486; United States v. Wallis, No. 09-10502, 630 Fed.Appx. 664 (9th Cir. Nov. 6, 2015). The Ninth Circuit issued its order affirming Gensemer's conviction on November 6, 2015. Gensemer did not petition the Supreme Court for certiorari, which finalized his direct appeal. Gensemer then began preparing a collateral attack on his conviction under 28 U.S.C. § 2255. According to Gensemer, his deadline to file was February 5, 2017. Mot. to Extend 2, ECF No. 1554. However, two institutional lock downs at FCC Pollock interrupted his preparation. The first lock down occurred in July of 2016. From July 23, 2016 until August 8, 2016, Gensemer was under “Institutional Lock-down for security precautions.” Id. at 4. During that time, Gensemer was unable to leave his cell and lost access to the library, making it difficult to prepare his petition. About two weeks before Gensemer's deadline, the institution was again placed on lock down after inmates attacked a prison guard. That lock down began January 26, 2017 and was apparently still in effect on February 9, 2017. Mot. Leave to File, ECF No. 1559 Ex. A, B.

         Gensemer requested a sixty-day extension to file his § 2255 petition on January 24, 2017. Mot. to Extend, ECF No. 1554. He argued that the lock downs were out of his control and that he was unsure how long his access to prison legal resources would be interrupted. Id. at 2. The government opposed the extension. It argued that the Court lacked jurisdiction to extend the deadline until Gensemer actually filed a petition. Resp. to Mot. to Extend 1-2, ECF No. 1555. Rather than reply to the government, Gensemer requested leave to file his § 2255 petition and attached a handwritten motion to vacate or correct sentence to his motion. See Mot. for Leave to File, ECF No. 1559. Gensemer signed the proposed petition on February 5, 2017, and placed it in the prison mail system. The Court received the petition and filed it on February 9, 2017. However, because Gensemer attached his § 2255 petition to his motion for leave to amend (ECF No. 1559), the petition was not docketed, and a corresponding civil case was not opened.

         After filing his handwritten § 2255 petition, Gensemer moved to extend time to submit his supplemental brief that was presumably saved on the prison computer. ECF No. 1574. Gensemer finally submitted his supplement on August 14, 2017 as part of a Motion to Submit Attached Count/Ground One Supplement and Additional 2255 and Additional Counts/Grounds to the Already Filed 2255 Petition. ECF No. 1579. Although styled as a motion to supplement, Gensemer's motion is better evaluated as a motion to amend his original § 2255 petition, and the Court elects to treat it as such.

         II. Legal Standard

         A defendant in federal custody may challenge a conviction that “was imposed in violation of the Constitution or laws of the United States” under 28 U.S.C. § 2255(a). However, § 2255 is not intended to give criminal defendants multiple opportunities to challenge their sentences. United States v. Dunham, 767 F.2d 1395, 1397 (9th Cir. 1985). Rather, § 2255 limits relief to cases where a “fundamental defect” in the defendant's proceedings resulted in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974). That limitation is based on the presumption that a defendant whose conviction has been upheld on direct appeal has been fairly and legitimately convicted. United States v. Frady, 456 U.S. 152, 164 (1982).

         Because a § 2255 petitioner has already pursued-and lost-a direct appeal, the Court assumes that the conviction is valid. For that reason, the government need not respond to the petition until ordered to do so. United States v. Boniface, 601 F.2d 390, 392 (9th Cir. 1979). The Court may summarily dismiss the petition if it is clear from the record that the petitioner does not state a claim for relief or if the claims are frivolous or palpably incredible. United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989) citing Baumann v. United States, 692 F.2d 565, 570- 71 (9th Cir. 1982). As always, the Court construes pro se pleadings liberally and in the petitioner's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Despite that leeway, the pro se party is still “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995).

         III. Analysis

         Despite the security lock downs at FCC Pollock, Gensemer managed to draft and timely file a § 2255 petition.[1] Although that handwritten petition does not include the thorough legal analysis that Gensemer wished, it did list four causes of action and the basic factual and legal bases for each. Gensemer's proposed supplement, on the other hand, is indisputably untimely. Gensemer filed that petition nearly six months after the deadline to do so. However, Gensemer's proposed amendment may survive if its claims relate back to the timely filed petition.

         A. Gensemer's Motion to Amend his Original Petition

         The Antiterrorism and Effective Death Penalty Act (AEDPA) imposed a statute of limitations on habeas petitions that did not previously exist. The purpose of the Act was to “eliminate delays in the federal habeas review process.” Holland v. Florida, 560 U.S. 631, 648 (2010). For prisoners in federal custody, 28 U.S.C. § 2255 imposes a one-year statute of limitations from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 524 (2003). The date a judgment of conviction becomes final is somewhat of a moving target because the defendant has multiple options following the judgment of conviction in the trial court. Where, as here, the defendant loses his direct appeal but does not pursue Supreme Court review, his conviction becomes final when the time for seeking certiorari expires. That is ninety days after the conviction is affirmed. United States v. Winkles, 795 F.3d 1134, 1136 n.1 (9th Cir. 2015).

         The Ninth Circuit affirmed Gensemer's conviction on November 6, 2015. He had until February 5, 2016 to petition for certiorari, which he did not do. Thus, Gensemer' one-year clock started on February 5, 2016. The clock stopped on February 5, 2017, which was a Sunday. Accordingly, Monday, February 6, 2017, was the last day to timely file his petition under § 2255. See Fed.R.Civ.P. 6(a)(1)(C). For in-custody defendants, their petition is deemed filed when it is delivered to prison staff to be forwarded to the Court Clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). Gensemer signed his petition and affirmed that he delivered it for filing on February 5, 2017. Therefore, Gensemer's handwritten petition was timely.

         Gensemer's supplemental petition, on the other hand, was filed on August 14, 2017, more than six months after the deadline to file. That petition is untimely, and the Court will not consider its allegations unless they relate back to his original petition. The Court applies the Federal Rules of Civil Procedure to habeas petitions so long as those rules do not conflict with any statutory provisions or other congressionally implemented habeas rules. See Rules Governing § 2255 Proceedings, R. 12, 28 U.S.C. § 2255 (applying the Federal Rules of Civil Procedure to § 2255 proceedings). Rule 15 of the Rules of Civil Procedure governs pleading amendments and “applies to habeas petitions with the same force that it applies to garden-variety civil cases.” James v. Pliler, 269 F.3d 1124, 1126 (9th Cir. 2001) (internal quotation marks omitted); 28 U.S.C. § 2242 (habeas petitions “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”). An amended petition relates back if its claims arise “out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B).

         Given AEDPA's intent to streamline habeas proceedings, the Court narrowly interprets what constitutes the petition's underlying transaction or occurrence. Mayle v. Felix, 545 U.S. 644, 662-63 (2005). A new claim does not relate back to the original petition merely because it arises out of the same trial, conviction, or sentence. Id. at 662-64. Indeed, such a rule would allow any amendment to a collateral attack and effectively “obliterate” the statute of limitations. Id. at 659. Rather, the new claim must involve a common core of operative facts of the same “time and type” set out in the original petition. Id. at 650. At bottom, the new claim relates back when the original petition provides an “aggregation of facts from which” the new claim ...


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