United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on petitioner's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 ("motion to vacate") (DE 93) and respondent's motion to dismiss the same (DE 97). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate Judge Robert B. Jones, Jr., entered memorandum and recommendation ("M&R") (DE 108) wherein it is recommended that the court grant respondent's motion to dismiss. Petitioner did not file an objection to the M&R. Pursuant to 28 U.S.C. § 636(b)(1)(A), the magistrate judge denied petitioner's motion for extension of time to amend (DE 105) and motion to stay (DE 106). Petitioner timely filed an objection to the denial of the motion to stay. Also before the court are petitioner's second motion to stay (DE 112) and motion for leave to supplement (DE 113). The motion for leave to supplement has been fully briefed. All of the motions are ripe for adjudication.
On March 14, 2008, a superseding indictment was filed charging petitioner with the following four counts: conspiracy to distribute and possess with the intent to distribute marijuana; possess with intent to distribute marijuana; use of a firearm in relation to a drug trafficking crime; and possession of a firearm by a felon. On April 3, 2008, a jury verdict was returned finding petitioner guilty on all four counts in the indictment. On July 10, 2008, petitioner was sentenced to an aggregate term of 360 months imprisonment. Petitioner appealed and, on April 12, 2011, the Fourth Circuit affirmed the judgment of the district court.
On April 16, 2012, petitioner filed the instant motion to vacate asserting that his sentence should be vacated and set aside on the grounds that he received ineffective assistance of counsel. Petitioner specifically asserts he received ineffective assistance of counsel based on the following grounds: (1) counsel's failure to file a pre-trial motion to suppress to contest the legality of the search of petitioner's vehicle by law enforcement in Scotland County, North Carolina on March 24, 2007; (2) counsel's failure to adequately object to the government's use of Officer Marshburn as an expert witness in the field of drug distribution; (3) counsel's failure to object to the government's leading questions, hearsay testimony, and other prejudicial matters; and (4) appellate counsel's failure to contest the search of petitioner's vehicle in Scotland County on direct appeal. (Mem. in Supp. 3-6). On June 25, 2012, respondent filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
On July 26, 2013, petitioner filed a motion for extension of time to amend his motion to vacate and a motion to stay. On November 15, 2013, the magistrate judge entered the M&R recommending that the court grant respondent's motion to dismiss. The magistrate judge also denied the motion for extension of time to amend and the motion to stay. On December 2, 2013, petitioner objected to the denial of the motion to stay.
Petitioner subsequently filed a second motion to stay (DE 112) and a motion for leave to supplement (DE 113). The motion for leave to supplement has been fully briefed. Both motions are ripe for decision.
A. First Motion to Stay (DE 106)
As noted in the M&R, petitioner moved to stay consideration of his motion to vacate for a period of ninety (90) days so that he could amend same to "present all the claims available in the § 2255 proceeding so that he [would not] forfeit them." (Mot. to Stay 1). Petitioner specifically requested this additional time so that he could file a complaint with the local bar association to seek a copy of his case file from his trial and appellate attorneys. (Id.) Petitioner appeared to believe the case file would support the assertion of additional claims in the motion to vacate. The magistrate judge denied petitioner's motion to stay, finding an absence of good cause to suspend case deadlines. Petitioner objects to this ruling and contends his delay in filing an amendment was due to his attorney's delay in sending the case file, not any fault of his own.
A district court may refer to a magistrate judge "a pretrial matter not dispositive of a party's claim or defense." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). Upon timely objection by a party, the district court must "modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also Local Civil Rule 72.4(a).
A party may amend its pleading one time as a matter of course within twenty-one (21) days after service of a responsive pleading or twenty-one (21) days after service of a motion under Rule 12(b), whichever is earlier. Fed.R.Civ.P. 15(a). "When an act... must be done within a specified time, the court may, for good cause, extend the time: on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). In determining whether excusable neglect exists, the court should take into account "all relevant circumstances surrounding a party's omission, " including "the danger of prejudice to the [opposing party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship , 507 U.S. 380, 395 (1993); see also Gaskins v. BFI Waste Servs., LLC , 281 F.Appx. 255, 260 (4th Cir.2008) (holding that district court should apply the Pioneer factors in the context of Rule 6(b) motion).
After considered review, this court concludes that the magistrate judge's decision on the motion to stay is neither clearly erroneous nor contrary to law. This court finds that petitioner has not alleged excusable neglect such to justify extending the deadline to file an amendment. Petitioner filed this first motion to stay approximately fifteen (15) months after filing his § 2255 motion. He has not presented any facts to suggest his failure to file an amendment during this fifteen (15) month time period is the result of excusable neglect. Although his attorneys may have contributed to his delayed receipt of the case file, they are not to blame for the fifteen (15) month delay between petitioner's filing of the § 2255 motion and this motion to stay. The record shows petitioner received his case file no more than five months after filing a complaint with the local bar association. Petitioner has failed to show why he could not have pursued this course of action sooner. In addition, while petitioner only requested a ninety (90) day stay, the motion to stay was pending for more than ninety (90) days before the M&R was entered. During this pendency period petitioner did not make any attempt to file an amendment or ...