Submitted February 12, 2015.
Appeal from United States District Court for the District of North Dakota - Fargo.
Gregory Scott Taylor, Petitioner - Appellee, Pro se, Duluth, MN.
For Gregory Scott Taylor, Petitioner - Appellee: Thomas William Austin, Jr.; Jeremy Gordon, Waxhachie, TX; Benson Weintraub, LAW OFFICE OF JEREMY GORDON, Mansfield, TX.
For United States of America, Respondent - Appellant: Nicholas Whitney Chase, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND; Megan A. Healy, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND; Tara Vavrosky Iversen, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND; Christopher C. Myers, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND.
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges. KELLY, Circuit Judge, concurring.
SHEPHERD, Circuit Judge.
Appellee Gregory Taylor was convicted of conspiracy to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § § 841(a)(1) and 846. Taylor filed a timely motion to vacate his sentence under 28 U.S.C. § 2255, arguing his trial counsel provided ineffective assistance. Nearly 10 months after section 2255's limitation period expired, Taylor sought to amend his motion to include an additional ineffective assistance claim. The district court permitted Taylor to amend and granted the motion to vacate on Taylor's amended claim. The United States now appeals, arguing the district court erred in finding Taylor's amended claim related back to any of his original claims. We conclude the district court abused its discretion in finding Taylor's amended claim related back and thus, having jurisdiction pursuant to 28 U.S.C. § 1291, we reverse and remand with instructions to reimpose Taylor's sentence.
Taylor and six co-defendants were charged with conspiring to possess methamphetamine with intent to distribute and conspiring to launder money. In a proposed plea agreement, the United States offered to dismiss the drug conspiracy count and recommend a two-year prison sentence if Taylor pled guilty to the money laundering count. In circumstances that are unclear, Taylor did not accept the plea, and the case proceeded to trial. At the close of the government's case, Taylor moved for a judgment of acquittal, which the district court granted on the money laundering count. The jury found Taylor guilty on the drug conspiracy count, and Taylor received the mandatory minimum sentence of 120 months imprisonment. See 21 U.S.C. § 841(b)(1)(A)(viii). We affirmed his conviction and sentence on direct appeal on August 11, 2011, and denied rehearing on October 5, 2011. See United States v. Slagg, 651 F.3d 832, 832, 850 (8th Cir. 2011). Taylor did not file a petition for writ of certiorari and his conviction became final for the purposes of section 2255's limitation period on January 3, 2012. See Clay v. United States, 537 U.S. 522, 532, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) ( " [F]or federal criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." ); S.Ct. R. 13(1), (3) (90-day period for filing a petition for writ of certiorari runs from the date of the denial of rehearing if a petition for rehearing is timely filed in the lower court).
Taylor filed a timely motion to vacate pursuant to 28 U.S.C. § 2255, arguing his attorneys provided ineffective assistance of counsel in three ways: (1) failing to convey his decision to accept the plea offer to the government; (2) failing to request a " cautionary tail" instruction;  and (3) failing to request a lesser included offense instruction. The district court issued an order denying Taylor's second claim as a matter of law and conducted an evidentiary hearing on the two remaining claims in October 2013. In his motion and in his testimony at the evidentiary hearing, Taylor claimed that he decided to accept the plea offer the night before trial, but his attorneys failed to communicate that acceptance to the government before the 10 p.m. deadline which had conditioned the offer, forcing him to forfeit the plea and proceed to trial. His attorneys testified that Taylor was still considering the plea offer the night before trial and decided to reject the plea offer on the morning of trial because he did not want to plead guilty to something he believed he did not do, i.e., money laundering.
After the evidentiary hearing, Taylor moved for leave to amend his section 2255 motion to add a claim that his attorneys " were ineffective for presenting, as their defense at trial, that Taylor's use and sharing of drugs did not constitute conspiracy to possess with intent to distribute drugs." He argued this defense theory essentially conceded his guilt and thus constituted no defense. He also noted in passing that, even assuming he did not accept the plea offer, in accordance with his attorneys' version of the events, he would have accepted the plea offer if he had known his defense was going to be in effect an admission of the charged offense. The government opposed the motion on the grounds that Taylor's amended claim was untimely, as it was filed outside section 2255's one-year limitation period and did not relate back to any of his original claims. The district court granted Taylor's motion to amend, finding that " [b]ecause the amendment is closely related to Taylor's third claim in the original 2255 petition, and because it arises out of the same conduct and transaction, it relates back to the date of the original filing." The court ordered the parties to brief whether Taylor's attorneys " provided ineffective assistance of counsel by 'presenting, as their defense at trial, that Taylor's use and sharing of drugs did not constitute conspiracy to possess with the intent to distribute drugs.'" After receiving briefing on this issue, the district court granted Taylor's motion to vacate on his amended claim. The district court concluded that while Taylor's attorneys did not provide ineffective assistance in presenting a " mere user" defense at trial, their misunderstanding of conspiracy law led them to give Taylor advice during plea negotiations that was so deficient that it deprived Taylor of the ability to make an intelligent decision as to whether to accept the proposed plea.
The United States now appeals, arguing the district court abused its discretion in finding Taylor's amended claim related back to one of his original claims and thus ...