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United States v. Noyes

United States District Court, W.D. Pennsylvania

December 5, 2019





         This matter arises out of Defendant's 2011 conviction on four Counts of transporting, receiving, and possessing child pornography, and transporting obscene material, in violation of 18 U.S.C. § 2252 and § 1462. The conviction followed a five-day trial, during which Defendant proceeded pro se with standby counsel.[1] After presentation of “all of the overwhelming, damning evidence, ” the jury arrived at a guilty verdict after “little more than one hour of deliberations.” United States v. Noyes, 501 Fed.Appx. 168, 169, 173 (3d Cir. 2012). On March 26, 2014, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, later amended with leave of Court on October 24, 2016.

         In the interest of clarifying the rather disorderly docket, the Court will first dispose of pending matters other than Defendant's Section 2255 Motion, before reaching the latter. Defendant has moved to lift the stay, and has filed several Motions that again seek to amend his pending Section 2255 Motion. Defendant has filed two Motions to Amend [291, 294], a Final Amendment to § 2255 Motion [300], and a Motion to Resubmit Amendments as Necessary and Motion to Lift Stay [303]. For the following reasons, the stay will be lifted, and the Motions denied in all other respects.


         A. BACKGROUND

         On March 26, 2014, Defendant filed a Motion to Vacate pursuant to 28 U.S.C.§ 2255 (“Section 2255”). Therein, Defendant raises various instances of ineffective assistance of trial counsel, including the failure to explain an offered plea bargain, and the failure to deal with the Government's withholding of Brady materials. He further challenges appellate counsel as ineffective for failing to properly address the seizure and forfeiture of Defendant's property, and failing to raise a challenge to the Court's jury instructions. He also alleges, in his Motion, that he was “subjected to torture” in violation of due process, and that a search warrant lacked probable cause. The Court provided Defendant notice pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999). Since that filing, Defendant took an interlocutory appeal, filed multiple motions, including discovery-related motions, a motion to dismiss, and a request for Judge Cercone's recusal, and sought to supplement his Section 2255 Motion. On October 18, 2018, at Defendant's request, the Court entered a stay pending appellate activity.

         Previously, Defendant has requested and received numerous opportunities to amend his Section 2255 Motion. For example, by Order dated July 19, 2016 (“July 19 Order”), the Court granted Defendant's Motion to supplement his petition with a Johnson argument. Accordingly, Defendant filed a new Section 2255 Motion on October 24, 2019. By Order dated February 15, 2018 (“February 15 Order”), after construing the pleadings with great liberality and making every effort to allow this pro se litigant to address all his claims, the Court further granted Defendant's multiple requests to amend or correct his Section 2255 Motion.[2]


         Defendant has filed a Motion to Amend in order to include a challenge to the indictment in his case [291], as well as a Motion to Amend that seeks to include an attack on the supervised release portion of his sentence [294]. In particular, he wishes to assert claims that the indictment did not contain sufficient facts, and that his supervised release term, which should be categorized as imprisonment, improperly results in a sentence that exceeds the statutory maximum.[3] Thus, he seeks to challenge his supervised release term as an unconstitutional Bill of Attainder. Defendant has also filed an Amended Motion to Vacate [300], in which he challenges the effectiveness of trial and appellate counsel for failing to challenge the factual sufficiency of the indictment under Fed. R. Crim. P. 12. Included in his request to lift the stay, Defendant moves to Resubmit Amendments as Necessary [303]. The Court has assessed Defendant's submissions according to the well-established liberal standards applicable to pro se litigants.

         “The one-year statute of limitations bars amendment of an existing § 2255 motion that seeks to add new claims after the one-year period has expired.” Graulich v. United States, No. 14-2572, 2016 U.S. Dist. LEXIS 169212, at *11 (D.N.J. Dec. 5, 2016). An amendment merely to amplify or clarify the facts may be permissible, but not one that “seeks to add an entirely new claim or theory of relief.” United States v. Thomas, 2016 U.S. Dist. LEXIS 169212, 436 (3d Cir. 2000). An untimely amendment, however, will “relate back” to a timely filing, and thus be permissible, if "the claim or defense asserted in the amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c). Judge Fischer has summarized these principles as follows:

A petitioner who has filed a timely § 2255 motion may not amend it to raise new claims after expiration of the one-year limitation period. However, the "relation back" principle of Federal Rule of Civil Procedure 15 applies to § 2255 motions, and "[s]o long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order." This means that a new claim only may be raised in an untimely amended motion if it "arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading." However, relation back of a new, untimely § 2255 claim is impermissible if it is "supported by facts that differ in both time and type from those the original pleading set forth."

United States v. Waller, No. 14-40, 2018 U.S. Dist. LEXIS 119452, at *8-9 (W.D. Pa. July 18, 2018).

         Here, Defendant's previous submissions do not relate to his supervised release term or the sufficiency of the indictment; instead, the previous submissions challenge issues such as his treatment while in custody, as well as counsel's conduct with respect to matters such as the failure to subpoena of various evidence and witnesses, the failure to investigate various types of evidence, the failure to request certain examinations or hearings, the failure to properly explain a plea offer, and the failure to properly deal with withheld Brady materials. To the extent that Defendant has challenged his sentence, his previously-filed Motions touched solely on the Feeney Amendment and an alleged separation of powers violation, and the alleged vagueness or improper application of U.S.S.G. § 2G.2. Although Defendant contends that his previously-filed brief “alluded to” a challenge to the indictment, the Court finds no allusion that suffices under applicable standards. Indeed, Defendant confirmed, in a 2016 supplemental filing describing the pending Motion, that it did not raise either of the grounds now sought to be included. See Docket 240-1. Under ...

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