United States v. Hussain

          OPINION GRANTING GOVERNMENT'S MOTION TO STRIKE (DOC. #86) PETITIONER'S REPLY BRIEF (DOC. #85)

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE

         After entering a guilty plea, Syed Ibrahim Hussain ("Hussain") was convicted and sentenced on one count of extortion by interstate communication, 18 U.S.C. § 875(b), and one count of possession of child pornography, 18 U.S.C. § 2252(a)(5)(B).

         Before the Court is Hussain's amended petition for a writ of habeas corpus ("Amended Petition") pursuant to 28 U.S.C. § 2255. The Government responded and Hussain filed a reply ("Reply") [Doc. 85], which the Government seeks to strike ("Motion") [Doc. 86]. The Government says that the claims raised in the Reply are time-barred by the statute of limitations for seeking habeas relief. The Court agrees. The motion to strike is GRANTED.

         I. Background

         Hussain's Amended Petition seeks a writ of habeas corpus for ineffective assistance of counsel. Specifically, Hussain contends that his counsel did not explain the plea negotiation process to him, causing him to not realize that a "plea offer" indicated in an email from the Government would expire. In its response, the Government argues that Hussain's counsel was not ineffective because the Court had ruled that the email did not constitute a plea offer, and that Hussain suffered no prejudice.

         In his Reply, Hussain raises additional claims of his counsel's alleged incompetence, including counsel's: 1) unwillingness to listen to Hussain's explanation of the facts; 2) adaptation of a strategy to make Hussain look "as culpable as possible" in proffer sessions with the Government; 3) failure to "properly investigate the case facts, interview potential witnesses, or meet and discuss the proffers" with Hussain before they were conducted; 4) failure to present information regarding Hussain's physiological status; and 5) abandonment of the plea negotiation process and communication with Hussain. [Doc. 85, Pg. 10-12, 15-16]. As a result of his counsel's ineffectiveness, Hussain says he was offered a plea that was significantly less favorable to him than it might have otherwise been. Ultimately, Hussain claims that "irrespective of whether the ... email was a formal or informal offer, [counsel] was ineffective because he was uninformed, unprepared and failed in his basic responsibility to defend [Hussain] and to represent his best interests in plea negotiations." Id. at 21.

         Filed after the one-year statute of limitations on his habeas petitions had expired, the Government says that Hussain's Reply is "really an entirely new § 2255 motion that sets forth different claims and arguments than his original § 2255 motion" and is time-barred. [Doc. 86, Pg. 1]. Hussain disagrees and says: 1) new claims are not presented, but instead "a clarification or amplification of his initial claim of [ineffective assistance of counsel]"; 2) if it does contain new claims, is an amendment that relates back to his original Amended Petition pursuant to Rule 15(c)(1)(B) of the Federal Rules of Civil Procedure; and 3) warrants equitable tolling. [Doc. 88, Pg. 7, 10].

         II. Analysis

         A. New Claims Raised in Reply Brief

         A reply to a response to a habeas petition is not the proper pleading for the petitioner to raise additional grounds for relief. Burns v. Lafler, 328 F.Supp.2d 711, 724 (E.D. Mich. 2004). "Because it is improper to raise arguments initially in a reply brief, a court generally will not consider them." United States v. Jackson, 2016 WL 8232847, at *2 (E.D. Ky. Mar. 9, 2016), report and recommendation adopted, 2016 WL 8243168 (E.D. Ky. Apr. 1, 2016). "Doing so is procedurally improper at least because it deprives the [Government] of the right to address the new claims." Berlanga v. Winn, 2016 WL 4662430, at *9 (E.D. Mich. Sept. 7, 2016).

         This Court disagrees with Hussain that his Reply merely amplifies the ineffective assistance of counsel claim he raised in his Amended Petition. And, the cases that Hussain cites to in support of this proposition are unavailing.

         For example, Hussain cites to Cowan v. Stovall. In Cowan, the petitioner alleged ineffective assistance of counsel because counsel failed to interview witnesses in support of her defense that she was not present during a drug transaction. Cowan v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011). The petitioner later filed a motion to amend her petition, "in which she spelled out in greater detail the witnesses whom [counsel] had ignored and the substance of what their testimony would have been." Id. The Sixth Circuit concluded that the "facts recited in the two documents differed not in kind, but in specificity." Id. at 819.

         In contrast, Hussain's Amended Petition is limited to a claim that counsel was ineffective for failure to explain the plea negotiation process. In his Reply, Hussain raises other allegations of ineffectiveness, as outlined above. Entirely new and unrelated claims are presented in Hussain's Reply that "include new and different theories of ineffective assistance" of counsel. Atchley v. United States, 2011 WL 1532074, at *2 (E.D. Tenn. Apr. 21, 2011).

         Hussain's timely original Section 2255 motion did assert a perfunctory claim of ineffective assistance of counsel related to plea negotiations. However, as the Government points out in its Motion, the allegations that Hussain raises in his Reply were "factual in nature and would have been known to [Hussain] at the time he filed his original or amended § 2255 motion." [Doc. 86, Pg. 5-6]. SeeKuehne v. United States, 2011 WL 5526002, at *11 (S.D. Ohio Aug. 10, 2011), report and recommendation adopted, 2011 WL 5521245 (S.D. Ohio Nov. 14, 2011). ("the facts [Petitioner] now advances as underlying the claim that his trial and appellate ...