United States District Court, D. Nevada
J. Dawson United States District Judge
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).
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
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.
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.
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.
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.
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.
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).
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).
the security lock downs at FCC Pollock, Gensemer managed to
draft and timely file a § 2255 petition. 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.
Gensemer's Motion to Amend his Original Petition
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).
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.
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.
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