United States District Court, E.D. Michigan, Southern Division
AND ORDER CONSTRUING DEFENDANT'S “MOTION TO VACATE
SENTENCE [U]NDER 28 U.S.C. § 2255, ”
“RESPONSE TO RESPONDENT'S ANSWER, ” AND
“MOTION TO AMEND REPLY TO RESPONSE” JOINTLY AS AN
AMENDED MOTION TO VACATE SENTENCE UNDER 28 U.S.C. §
2255, DENYING WITHOUT PREJUDICE DEFENDANT'S “MOTION
FOR CONSIDERATION AND RESENTENCE, ” AND ORDERING THAT
THE GOVERNMENT FILE A RESPONSE
H. CLELAND UNITED STATES DISTRICT JUDGE.
Jacklyn Price moves to vacate her sentence under 28 U.S.C.
§ 2255. (ECF No. 252.) She argues that her
attorney's performance constituted ineffective assistance
of counsel under the Sixth Amendment. The government has
filed a response. (ECF Nos. 267.)
government's response convincingly argues for dismissal
of Price's original motion. Valentine v. United
States, 488 F.3d 325, 333 (6th Cir. 2007) (quoting
Arredondo v. United States, 178 F.3d 778, 782 (6th
Cir. 1999)) (A prisoner is not entitled to a hearing if his
or her “allegations cannot be accepted as true because
they are contradicted by the record, inherently incredible,
or conclusions rather than statements of fact.”).
(Id.) Price's allegations in her original motion
contain non-verifiable factual assertions and unsupported
conclusions. Price was also contradicted by the record, most
prominently Price's own statements during her plea
hearing and sentencing hearing. (ECF Nos. 151, 260.)
then filed a document titled “Response to
Respondent's Answer.” (ECF No. 269.) Standing at
forty-six pages (forty-four of them handwritten), it appeared
to be Price's reply. (See ECF No. 275,
PageID.3077.) However, the document was far longer than reply
briefs otherwise permitted in this district. E.D. Mich. L.R.
7.1(d)(3)(B) (“The text of a reply brief, including
footnotes and signatures, may not exceed 7 pages.”).
Price also added new factual detail and legal analysis.
United States v. Campbell, 279 F.3d 392, 401 (6th
Cir. 2002) (“[A party] cannot raise new issues in a
reply brief; he can only respond to arguments raise for the
first time in [the opposing party's] brief.”);
see also Chancellor v. City of Detroit, 454
F.Supp.2d 645, 665 (E.D. Mich. 2006). If the document is
treated as a reply, the government will be unable to file a
response confronting new issues presented by Price. The
current briefing as it stands may entitle Price to
an evidentiary hearing. Martin v. United States, 889
F.3d 827, 832 (6th Cir. 2018) (“Where there is a
factual dispute, the habeas court must hold an
evidentiary hearing to determine the truth of the
after submitting her gargantuan reply, Price filed a
“Motion to Amend Reply to Response.” (ECF No.
278.) Price seeks to add another sixteen pages of new
argumentation that the court did not request and the
government has not responded to. (Id.) Price lastly
filed a “Motion for Consideration and Resentence,
” which added no arguments and simply asked the court
to consider Price's original motion.
recent filings have added allegations. For example, Price has
provided greater detail regarding her responsibility for the
fraudulent acts of her co-defendant, Muhammad Qazi. Price
claims her attorney failed to investigate Price's
involvement in Qazi's fraud by, for example, interviewing
witness and requesting an evidentiary hearing. (ECF No. 269,
PageID.3020-3023; ECF No. 278, PageID.3093-94.) Price asserts
her attorney's ineffective performance caused Price to
sign a plea agreement in which Price accepted responsibility
for Qazi's fraudulent behavior under conspiratorial
liability, resulting in a higher sentence. (ECF No. 278,
PageID.3093-94.) Notably, Price's original § 2255
motion did not explicitly claim that her attorney's
alleged failure to investigate the amount of loss caused
Price to sign a plea agreement that Price would not have
signed. This is notable given that the attorney who
represented Price during plea negotiations did not represent
Price at sentencing.
habeas corpus petitions “are to be liberally viewed
with tolerance and forebearance.” Allen v.
Perini, 424 F.2d 134, 142 (6th Cir. 1970). While
flexibility is not limitless, the court will give Price the
opportunity to present all her arguments, whether they be in
her original motion or her subsequent “replies.”
The court will construe Price's “Response to
Respondent's Answer” and “Motion to Amend
Reply to Response” as requests to amend her original
motion. (ECF Nos. 269, 278.) The court will grant these
amendments. Coe v. Bell, 161 F.3d 320, 342 (6th Cir.
1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130
(6th Cir. 1994)) (“Under Rule 15(a), leave to amend a
pleading shall be freely given when justice so
requires.”). Price's two filings and her original
motion will be considered together as her amended motion.
(ECF Nos. 1, 269, 278.)
court will give the government an opportunity to fully
respond to any of Price's newly submitted arguments.
Price may reply to the government's response, but she
must comply with the spatial requirements of a proper reply.
The court will not allow Price to again amend her motion in
response to the government's briefing.
does not cite any legal basis for her “Motion for
Consideration” and the court is actively considering
Price's § 2255 motion. Price's “Motion for
Consideration and Resentence” will be denied without
prejudice. Accordingly, IT IS ORDERED that Defendant Jacklyn
Price's “Response to Respondent's Answer”
(ECF No. 269) and “Motion to Amend Reply to
Response” (ECF No. 278) are CONSTRUED jointly with her
original § 2255 motion, “Motion to Vacate Sentence
[U]nder 28 U.S.C. § 2255” (ECF No. 252), as an
Amended Motion to Vacate Sentence Under 28 U.S.C. §
FURTHER ORDERD that Price's “Motion for
Consideration and Resentence” (ECF No. 282) is DENIED
IT IS ORDERED that Plaintiff United States of America shall
file a response to Price's newly ...