USA v. Strickland et al

AbrIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOHNNYLEE PRESTON BURK,
Defendant.
Case No. 3:15-cr-00088-SLG-3
ORDER REGARDING AMENDED 28 U.S.C. § 2255 MOTION
Before the Court at Docket 295 is defendant Johnnylee Preston Burk’s Amended
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Custody. At the Court’s request, the government filed a limited response in opposition
at Docket 297. Because the Court has previously denied a § 2255 motion from Mr. Burke
in this case, the issue before the Court is whether the instant motion is a prohibited second
or successive motion.
I. Procedural background
As noted by Mr. Burk’s current counsel, “this case has had a very long and complex
procedural history.”1 In March 2017, this Court sentenced Mr. Burk to 60 months
imprisonment after he pleaded guilty to one count of Drug Conspiracy.2 In September
2017, Mr. Burk first filed a pro se § 2255 motion alleging ineffective assistance of counsel
1 Docket 293 at 1.
2 Docket 206.
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 1 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 2 of 7
at sentencing.3 Mr. Burk specifically sought “the opportunity to present his mental health
history in his PSR and sentencing . . . . Defendant does not wish to withdraw his plea.”4
CJA counsel later entered an appearance, but Mr. Burk elected to have counsel withdraw
and to proceed pro se.5 The Court granted Mr. Burk’s request.6 Mr. Burk filed a pro se
amendment to his § 2255 motion, in which he “withdrew his original claim regarding
previous counsels [sic] failure to present mental health history” and instead claimed “that
his plea was involuntary in this case and therefore not valid.”7 The government opposed
the amended § 2255 motion.8 In 2018, this Court denied Mr. Burk’s initial § 2255 motion
and the amended § 2255 motion and denied a Certificate of Appealability, and a judgment
was entered accordingly.9
The following month, Mr. Burk filed a motion to reconsider, which the Court
denied.10 Mr. Burk then filed a “Motion Requesting Courts Re-Opening of § 2255.”11
While that motion was pending, Mr. Burk filed an untimely notice of appeal.12 The Court
denied the motion to reopen the § 2255 proceeding without prejudice to file such a motion
3 Docket 216 at 4.
4 Docket 216 at 13.
5 Docket 219 (Appearance of Counsel); Docket 234 (Motion to Proceed Pro Se).
6 Docket 236.
7 Docket 235 at 1.
8 Docket 239.
9 Docket 241 (order); Docket 242 (judgment).
10 Docket 243 (motion to reconsider); Docket 244 (order).
11 Docket 245.
12 Dockets 246, 247.
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 2 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 3 of 7
in the Ninth Circuit Court of Appeals; the Court did allow Mr. Burk’s belated notice of
appeal.13 In September 2018, the Ninth Circuit denied a certificate of appealability
because Mr. Burk made no “substantial showing of the denial of a constitutional right.”14
In April 2020, Mr. Burk filed a pro se “Request for Counsel in Habeas Filing,”
asserting that he needed counsel due to “newly discovered evidence” related to his trial
counsel’s performance.15 The Court appointed counsel, and that counsel has filed the
instant amended § 2255 motion. In the amended § 2255 motion, Mr. Burk asserts that it
is not a second or successive motion.16 The government responds that the amended
petition “is a second or successive motion that must be certified by the Ninth Circuit
pursuant to 28 U.S.C. § 2255(h).”17
II. Applicable law
28 U.S.C. § 2255(h) prohibits a “second or successive motion” unless such motion
is certified by the Ninth Circuit to contain either
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
13 Docket 249. Mr. Burk would later file a “Memorandum in Support” of his motion to re-open the
§ 2255 proceeding (Docket 251) and a motion requesting a ruling on the motion to re-open the
proceeding (Docket 253). Because the Court had denied the motion to re-open the proceeding
six months earlier, it denied the motion for a ruling as moot (Docket 254).
14 Docket 250.
15 Docket 279.
16 Docket 295 at 13–15.
17 Docket 297 at 2.
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 3 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 4 of 7
review by the Supreme Court, that was previously unavailable.
Thus, before a second or successive § 2255 motion may be considered by a district court,
the defendant “shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.”18 If Mr. Burk’s amended § 2255 motion is a
second or successive motion, this Court lacks jurisdiction to hear it absent that
authorization.19
III. Application to Mr. Burk’s case: The relation-back doctrine
Mr. Burk asserts that he does not need to seek an order from the Ninth Circuit
because his amended § 2255 motion is simply an amendment to his 2017 pro se § 2255
motion and is not a second or successive motion.20 He invokes Federal Rule of Civil
Procedure 15(b)(2), which allows a party to “move—at any time, even after judgment—to
amend the pleadings to conform them to the evidence and to raise an unpleaded issue.”21
Mr. Burk maintains that his amended § 2255 motion “‘relates back’ to the original pleading
. . . because, ‘the amendment asserts a claim or defense that arose out of the conduct,
transaction or occurrence set out—or attempted to be set out—in the original pleading.’”22
Specifically, Mr. Burk contends that because his first § 2255 motion pleaded ineffective
assistance of counsel, he can now amend his motion to include any claim of ineffective
18 28 U.S.C. § 2244(b)(3)(A).
19 United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).
20 Docket 295 at 13.
21 Docket 295 at 13.
22 Docket 295 at 13 (quoting Fed. R. Civ. P. 15(c)(1)(B)).
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 4 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 5 of 7
assistance of counsel, as that is “the same conduct set out in the original pleading.”23
Mr. Burk’s reasoning is incorrect for three reasons. First, because a final § 2255
judgment was entered in this case in April 2018, a Rule 15 motion to amend “can only be
entertained if the judgment is first reopened under a motion brought under Rule 59 or
60.”24 Mr. Burk has not moved for relief pursuant to Rule 59, and any such motion would
now be untimely because a Rule 59 motion “must be filed no later than 28 days after the
entry of judgment.”25 A Rule 60 motion would be viewed skeptically, as the Ninth Circuit
has warned that Rule 60 motions can themselves be disguised second or successive
habeas motions, and has instructed that a Rule 60 motion “that does not attack the
integrity of the proceedings, but in effect asks for a second chance to have the merits
determined favorably raises a claim that takes it outside the bounds of Rule 60(b) and
within the scope of AEDPA's limitations on second or successive habeas corpus
petitions.”26
Second, and relatedly, an “amended” § 2255 motion cannot relate back pursuant
to Rule 15 to the original motion when the original motion has already been dismissed by
the time the so-called “amendment” is filed.27 Here, the original motion was decided, and
23 Docket 295 at 13.
24 Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996), as amended (Sept. 4, 1996); see
also Balbuena v. Sullivan, 970 F.3d 1176, 1193 (9th Cir. 2020) (applying Lindauer to a habeas
case and holding that “the district court could not apply Rule 15; instead, it could only consider
[the petitioner’s] new claim if it set aside its earlier judgment under Rule 60(b)”).
25 Fed. R. Civ. P. 59(e).
26 Jones v. Ryan, 733 F.3d 825, 834 (9th Cir. 2013) (internal quotations omitted).
27 See Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999) (holding that a second 28 U.S.C. § 2241
petition did not “relate back” to the date of the first petition pursuant to Rule 15 because the
district court had already dismissed the first petition without expressly or impliedly retaining
jurisdiction over the first petition). See also Gomez v. Jaime, Case No. CV19-00123-JGB, 2019
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 5 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 6 of 7
judgment was entered, more than two years before the instant motion was filed. The
Court did not “expressly or impliedly retain jurisdiction”28 over the motion and it resolved
all issues presented. Thus, there is no pending motion to which the instant motion could
relate back or amend.
Third, even if Rule 15 were applicable, Mr. Burk reads Rule 15(c) too broadly. A
second motion “relates back” to a first motion only if it is based “on the same core facts.”29
In his first motion, Mr. Burke alleged that trial counsel was ineffective for failing to prepare
and present all of his mental health history for the PSR and sentencing, which he claimed
would have resulted in a shorter sentence.30 In his 2017 amendment to that motion, Mr.
Burk formally waived that claim and instead claimed that his plea was made involuntarily
WL 2413310, at *3 (C.D. Cal. Apr. 19, 2019) (“It is long and well established in the Ninth Circuit
that if a prior federal petition has been dismissed for lack of exhaustion and is no longer pending
as of the date the second federal petition is filed, the relation back doctrine is inapplicable, as
there is no ‘pending’ petition to which the second petition could relate back or which it could
amend.”); Baiden v. United States, Case No. CV501-025, 2012 WL 13089809, at *1 (S.D. Ga.
Dec. 5, 2012) (“[A]ll the circuit courts that have addressed the issue have held that a habeas
petition filed after a previous petition has been dismissed does not relate back to the earlier
petition.”).
This Court notes that most Rule 15 caselaw involves petitioners who are trying to avoid a statute
of limitations bar by “relating back” their time-barred claims to claims that were timely filed but
which are still pending. Although Mr. Burk’s instant motion may also be time barred, he instead
frames the issue as whether the motion is a second or successive motion. See United States v.
Thomas, 221 F.3d 430, 436 (3d Cir. 2000) (“[W]e hold that Rule 15(c)(2) applies to § 2255 petitions
insofar as a District Court may, in its discretion, permit an amendment to a petition to provide
factual clarification or amplification after the expiration of the one-year period of limitations, as
long as the petition itself was timely filed and the petitioner does not seek to add an entirely new
claim or new theory of relief.”).
28 Henry, 164 F.3d at 1241.
29 Mayle v. Felix, 454 U.S. 644, 656–57 (2005) (expressly rejecting as overly comprehensive and
capacious the Ninth Circuit’s allowance of any new claims stemming from the petitioner’s trial,
conviction, or sentence).
30 Docket 216 at 4.
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 6 of 7

Case No. 3:15-cr-00088-SLG, United States v. Burk
Order Re Amended § 2255 Motion
Page 7 of 7
because he believed the maximum term of supervised release that the court could impose
was two years, when in fact the Court imposed the maximum term of three years.31 Mr.
Burk now alleges that trial counsel was ineffective for not advising that his conviction
would count towards career-offender status, that trial counsel failed to raise a Fourth
Amendment issue related to a search warrant, and that trial counsel failed to move to
suppress recordings of Mr. Burk.32 These claims do not depend on the existence of “a
common core of operative facts” and instead depend on events separate in “both time
and type” from the original claims.33
CONCLUSION
For the foregoing reasons, the Court concludes that Mr. Burk’s instant motion is
not an amended § 2255 motion; it is a second or successive motion for which he must
seek an order from the Ninth Circuit. As Mr. Burk has not obtained the Ninth Circuit's
permission to file a second or successive petition, the motion at Docket 295 is
DISMISSED for lack of jurisdiction. IT IS SO ORDERED.
DATED this 21st day of October, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
31 Docket 235.
32 Docket 295 at 6.
33 Mayle, 545 at 657, 664.
Case 3:15-cr-00088-SLG Document 298 Filed 10/21/20 Page 7 of 7