United States District Court, E.D. Michigan, Southern Division
OPINION GRANTING GOVERNMENT'S MOTION TO STRIKE
(DOC. #86) PETITIONER'S REPLY BRIEF (DOC. #85)
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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.
New Claims Raised in Reply Brief
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).
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.
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.
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,
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 ...