             Case: 16-12819     Date Filed: 08/08/2018   Page: 1 of 12


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-12819
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket Nos. 6:16-cv-00565-JA-GJK,
                           6:08-cr-00176-JA-GJK-1


FRANK L. AMODEO,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (August 8, 2018)

Before TJOFLAT, MARTIN, and BRANCH, Circuit Judges.

PER CURIAM:

      Frank Amodeo appeals the district court’s denial of his 28 U.S.C. § 2255

motion as an unauthorized second or successive motion, as well as its denial as a
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post-judgment motion to alter or amend the judgment. On appeal, Amodeo argues

that his fourth-in-time § 2255 motion was not second or successive because it was

based on an operative fact that did not exist at the time he filed his third-in-time

§ 2255 motion. He also argues that the district court erred by not treating his

fourth-in-time § 2255 motion as an amendment to his third-in-time § 2255 motion

since the latter motion was pending on appeal. After careful consideration, we

affirm.

                                           I.

      Amodeo was indicted in August 2008 for conspiracy to defraud the United

States; nine counts of failing to remit payroll taxes; sixteen counts of wire fraud;

and obstructing an agency investigation. Pursuant to a written plea agreement, he

pled guilty to the conspiracy count, three counts of failure to remit payroll taxes,

and the obstruction count. Before his change-of-plea hearing, the district court

heard testimony from a psychiatrist who diagnosed Amodeo as having a mental

illness that made him susceptible to delusional beliefs. The psychiatrist explained

that, after intensive evaluation and treatment in an in-patient facility, Amodeo had

improved and was competent to be tried. At the change-of-plea hearing, the

district court asked Amodeo many questions about his mental state and ultimately

concluded he was competent to plead guilty. He was sentenced to 270-months




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imprisonment, and the remaining counts were dismissed on the government’s

motion.

      Amodeo appealed, seeking to set aside his guilty plea for (1) ineffective

assistance of counsel and (2) the district court’s failure to make a competency

determination. United States v. Amodeo, 387 F. App’x 953, 954 (11th Cir. 2010)

(per curiam). A panel of this Court declined to address the ineffective assistance

claim because the record was not developed enough to decide the issue. Id. This

Court then denied the competency claim because the record was sufficient to

support the district court’s finding that Amodeo was competent. Id. In July 2010

Amodeo asked for an extension to file a petition for writ of certiorari. Amodeo v.

United States, No. 10A437 (U.S. 2010). The Supreme Court granted the request

and extended his time to file to November 22, 2010. Id. Amodeo never filed a

cert. petition. See id.

      Amodeo then sought post-conviction relief. Starting in June 2011, he filed

two § 2255 motions. The district court dismissed both motions without prejudice

on procedural grounds, and this Court denied certificates of appealability (“COA”).

See Amodeo v. United States, No. 6:11-cv-01056 (M.D. Fla.) (docket entries 8, 12,

14, 19); Amodeo v. United States, No. 6:11-cv-01850 (M.D. Fla.) (docket entries

4, 6, 14, 18). Amodeo filed a third motion in April 2012, which was dismissed as

time-barred in September 2015. See Amodeo v. United States, No. 6:12-cv-00641


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(M.D. Fla.) (docket entries 1, 109). Amodeo appealed, and a judge of this Court

denied him a COA. See Amodeo v. United States, No. 15-15280 (11th Cir. Dec. 7,

2016) (docket entry 16). He then filed a motion for reconsideration and a motion

to supplement the record, both of which are still pending as of July 10, 2018. See

id. (docket entries 23, 24).

      In April 2016, while Amodeo’s appeal of his third-in-time § 2255 motion

was pending and before his motion for a COA was denied, he filed a fourth § 2255

motion. Amodeo asked that his guilty plea be vacated because it was not

intelligent or voluntary and because the government violated his due process rights

by allowing him to plead guilty despite knowing he lacked capacity. In support he

alleged that, in June 2008, before he was indicted on the federal charges, “the State

of Florida appointed a plenary guardian and deprived [him] of his right to

contract.” He said the Florida guardianship court wasn’t told about the plea

agreement and never approved it. He also alleged that his trial lawyer was

operating under a conflict of interest, which the government knew about and did

not disclose to the court.

      Amodeo explained that his successor guardian Charles Rahn, appointed in

June 2015, rescinded the plea agreement on March 27, 2016, because Amodeo

lacked capacity to enter into the agreement on his own. He argued that his motion

wasn’t second or successive under the Antiterrorism and Effective Death Penalty


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Act of 1996 (“AEDPA”) because the rescission of the plea agreement operated as a

“new fact” and that his motion was timely because it was filed within one year of

that event.

      The district court dismissed the fourth-in-time § 2255 motion for lack of

subject matter jurisdiction. The court determined the motion was second or

successive and thus Amodeo first had to apply to this Court for authorization to file

it. Amodeo filed a motion for reconsideration on two grounds. He first alleged the

motion was not a second or successive motion because it relied on a fact that did

not exist when his third-in-time § 2255 motion was dismissed by the district court.

That fact is that his plea agreement wasn’t rescinded until after his third § 2255

motion was dismissed. He argued alternatively that his fourth-in-time § 2255

motion should be construed as a motion to amend his third-in-time § 2255 motion

because the latter motion was still pending on appeal and hadn’t been fully

adjudicated. The district court denied the motion. This appeal followed.

                                          II.

      We review de novo a district court’s conclusion that a § 2255 motion is

“second or successive” under AEDPA. Stewart v. United States, 646 F.3d 856,

858 (11th Cir. 2011).

      Under AEDPA, a prisoner typically gets one chance to make his claims for

habeas relief to the court. See id. at 859. This is because AEDPA “dramatically


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limits” the prisoner’s ability to file “second or successive” § 2255 motions. Id. To

file a “second or successive” § 2255 motion, the prisoner must first apply to a court

of appeals and show the motion is based on either “newly discovered evidence” or

a “new rule of constitutional law.” 28 U.S.C. §§ 2244(b)(3), 2255(h).

      However, “[t]he phrase ‘second or successive’ is not self-defining.” Panetti

v. Quarterman, 551 U.S. 930, 943, 127 S. Ct. 2842, 2853 (2007). It’s a “term of art

that takes its full meaning from the Supreme Court’s case law, including decisions

predating the enactment of AEDPA.” Stewart, 646 F.3d at 859–60. This Court

has interpreted that phrase as barring motions “raising habeas claims that could

have been raised in earlier motions where there was no legitimate excuse for

failure to do so.” Id. at 859. “[B]ut if the purported defect did not arise, or the

claim did not ripen, until after the conclusion of the previous petition, the later

petition based on that defect may be non-successive.” Id. at 863 (quotation omitted

and alterations adopted). In other words, a § 2255 motion is not “second or

successive” if it makes a claim “the basis for which did not exist” until “after [the]

first § 2255 motion had already been filed and dismissed.” Id. The prisoner must

also show he acted with “due diligence” in trying to make his claim ripe. See id. at

863–64.

                                          III.




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      On appeal Amodeo makes only the two arguments he made in support of his

motion for reconsideration: (1) that his fourth-in-time § 2255 motion is not second

or successive because his claim that his guilty plea was not intelligent or voluntary

did not ripen until his guardian rescinded his plea agreement and, in the alternative,

(2) that the district court should have construed his fourth-in-time § 2255 motion as

amending his third-in-time § 2255 motion because the latter was still pending on

appeal. We address each in turn.

                                          A.

      Amodeo’s first argument requires answering two questions. First, what is

the legal significance of the rescission of his plea agreement? If, for example, the

rescission was necessary for him to bring a claim that his guilty plea was not

intelligent or voluntary, then his claim did not ripen until after that rescission. See

id. at 859–60, 863. Second, if his defective-plea claim was not ripe until the

rescission of the plea agreement, did he act diligently in seeking rescission of his

plea agreement? See id. at 863–64.

      Although Federal Rule of Criminal Procedure 11 does not allow defendants

to withdraw a guilty plea after sentencing, it allows a plea to be “set aside [] on

direct appeal or collateral attack.” Fed. R. Crim. P. 11(e). To have a guilty plea

set aside, the defendant must show the plea was not made intelligently or

voluntarily. See Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604,


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1609 (1998) (“A plea of guilty is constitutionally valid only to the extent that it is

‘voluntary’ and ‘intelligent.’” (quoting Brady v. United States, 397 U.S. 742, 748,

90 S. Ct. 1463, 1469 (1970)). A plea is intelligent if the defendant was “advised

by competent counsel, he was made aware of the nature of the charge against him,

and there was nothing to indicate that he was incompetent or otherwise not in

control of his mental faculties.” Brady, 397 U.S. at 756, 90 S. Ct. at 1473. A plea

is voluntary if it is a product of the defendant’s free will and not “force, threats, or

promises (other than promises in a plea agreement).” Fed. R. Crim. P. 11(b)(2).

      The rescission of Amodeo’s plea agreement on lack of capacity grounds is a

new fact that may support his claim that his guilty plea was not intelligent.

However, rescission of the plea agreement was not necessary to bring such a claim.

Amodeo (or his guardian) was free to assert his guilty plea was not intelligent for

the same reasons that led the State of Florida to appoint him a plenary guardian in

June 2008 and deprive him of his right to contract. See Bousley, 523 U.S. at 618,

118 S. Ct. at 1609; Brady, 397 U.S. at 756, 90 S. Ct. at 1473. Indeed, he could

have asked to withdraw his guilty plea on this basis before sentencing. See Fed. R.

Crim. P. 11(d)(2)(B) (allowing a defendant to withdraw a guilty plea after the court

accepts it but before sentencing if there’s a “fair and just reason”). And to the

extent he alleges constitutionally ineffective counsel prevented him from doing so,

such a claim also could have been brought in his first § 2255 motion.


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See Amodeo, 387 F. App’x at 954 (declining to address the ineffective assistance

claims because of the limited record on appeal). Notably, Amodeo’s first § 2255

motion did raise claims of ineffective assistance of counsel. See Amodeo, No.

6:11-cv-01056 (M.D. Fla.) (docket entry 8).

      Amodeo could have brought his defective-plea claim regardless of the

rescission of his plea agreement. For that reason, the rescission is not a new event

or fact that can support his claim that his fourth-in-time § 2255 motion is not

second or successive under AEDPA. See Stewart, 646 F.3d at 859–60, 863–64.

                                          B.

      Amodeo alternatively argues that the district court should have construed his

fourth-in-time § 2255 motion as a motion to amend his third-in-time § 2255

motion. In support, he points to the Second Circuit’s decision in Whab v. United

States, 408 F.3d 116 (2d Cir. 2005). In that case, Whab applied to the Second

Circuit to file a second or successive § 2255 motion, while the appeal of an earlier

one was still pending before that court. Id. at 118. The court determined

AEDPA’s “second or successive” limitation applies only to motions filed after “the

adjudication of an earlier petition becomes final”—that is, when the time for

seeking appellate or Supreme Court review passes, meaning that the petitioner’s

application was not necessary. Id. at 118–19, 120. Thus, the court denied the

petitioner’s application, transferred the second § 2255 motion to the district court,


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and instructed the district court to treat it “as if it had been filed directly in the

district court.” Id. at 119. The Second Circuit declined to instruct the district court

on how to treat the second § 2255 motion, but noted that an instruction to treat it as

a motion to amend the earlier § 2255 motion would be “neither necessary nor

appropriate in this case” because the earlier § 2255 motion was no longer pending

before the district court or the court of appeals. Id.

       Our Court has no published opinion establishing when the adjudication of a

§ 2255 motion becomes final such that the “second or successive” limitation

applies to all future motions.1 However, we need not answer this question today

because even if Amodeo’s fourth-in-time § 2255 motion had been construed as an

amendment to his earlier § 2255 pleading, it would have been futile.

       Federal Rule of Civil Procedure 15 governs the amendment of pleadings.

Rule 15(a) addresses pretrial amendments while Rule 15(b) addresses amendments

during and after trial. Fed. R. Civ. P. 15(a)–(b). Although Rule 15(a) provides for

liberal amendment of pleadings, Rule 15(b) operates more narrowly. See id. Rule

15(b) allows amendments in two circumstances:



       1
          In two unpublished decisions, however, we appear to have taken opposite positions.
Compare United States v. Terrell, 141 F. App’x 849, 850, 851–52 (11th Cir. 2005) (per curiam)
(affirming the district court’s decision to treat a motion to reopen and reduce sentence as an
unauthorized successive § 2255 motion while an earlier § 2255 motion was pending on appeal),
with In re Cummings, No. 17-12949 (11th Cir. July 12, 2017) (per curiam) (docket entry 3
denying application to file second or successive § 2255 motion as premature because there was
still time to seek Supreme Court review on an earlier § 2255 motion).
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             (1) Based on an Objection at Trial. If, at trial, a party objects
      that evidence is not within the issues raised in the pleadings, the court
      may permit the pleadings to be amended. The court should freely
      permit an amendment when doing so will aid in presenting the merits
      and the objecting party fails to satisfy the court that the evidence
      would prejudice that party’s action or defense on the merits. The court
      may grant a continuance to enable the objecting party to meet the
      evidence.

             (2) For Issues Tried by Consent. When an issue not raised by
      the pleadings is tried by the parties’ express or implied consent, it
      must be treated in all respects as if raised in the pleadings. A party
      may move—at any time, even after judgment—to amend the
      pleadings to conform them to the evidence and to raise an unpleaded
      issue. But failure to amend does not affect the result of the trial of that
      issue.

Thus, Rule 15(b) applies when evidence has been admitted or unpled issues have

been litigated by the parties. See id.; see also Cioffe v. Morris, 676 F.2d 539, 541

& n.7 (11th Cir. 1982) (stating Rule 15(b) permits “a judgment [to] be based on an

unpled issue as long as consent to trial of the issue is evident”).

      Amodeo’s motion could not have been granted under Rule 15(a) because his

fourth-in-time § 2255 motion was filed after the district court entered a judgment

dismissing the third one as time-barred. See Fed. R. Civ. P. 15(a); Jacobs v.

Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1344–45 (11th Cir. 2010) (“Rule 15(a),

by its plain language, governs amendment of pleadings before judgment is entered;

it has no application after judgment is entered.”). It also could not have been

granted under Rule 15(b). There was no hearing or trial here, and thus no evidence



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or trial of issues by express or implied consent. See Amodeo, No. 6:12-cv-00641

(M.D. Fla.).

       Because Federal Rule of Civil Procedure 15 does not allow post-judgment

amendment of pleadings in cases like Amodeo’s, he cannot show the district court

erred by failing to construe his newest § 2255 motion as a motion to amend. Also

for reasons of futility, it would not be appropriate to remand and direct the district

court to construe the fourth-in-time § 2255 motion as a motion to amend. Cf.

Whab, 408 F.3d at 119. 2

       AFFIRMED.




       2
          We note also that if this Court were to grant Amodeo’s pending motion for
reconsideration on his appeal challenging the dismissal of his third-in-time § 2255 motion and
grant relief, the third-in-time § 2255 motion would be back before the district court and Amodeo
could then file a motion to amend it, should he still want to do so.
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