                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1269
                         ___________________________

                                Gregory Scott Taylor

                        lllllllllllllllllllllPetitioner - Appellee

                                           v.

                              United States of America

                      lllllllllllllllllllllRespondent - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of North Dakota - Fargo
                                   ____________

                           Submitted: February 12, 2015
                               Filed: July 1, 2015
                                 ____________

Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
                        ____________

SHEPHERD, Circuit Judge.

       Appellee Gregory Taylor was convicted of conspiracy to possess with intent
to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Taylor filed a timely motion to vacate his sentence under 28 U.S.C. § 2255, arguing
his trial counsel provided ineffective assistance. Nearly 10 months after section
2255’s limitation period expired, Taylor sought to amend his motion to include an
additional ineffective assistance claim. The district court permitted Taylor to amend
and granted the motion to vacate on Taylor’s amended claim. The United States now
appeals, arguing the district court erred in finding Taylor’s amended claim related
back to any of his original claims. We conclude the district court abused its
discretion in finding Taylor’s amended claim related back and thus, having
jurisdiction pursuant to 28 U.S.C. § 1291,1 we reverse and remand with instructions
to reimpose Taylor’s sentence.

                                    I. Background

        Taylor and six co-defendants were charged with conspiring to possess
methamphetamine with intent to distribute and conspiring to launder money. In a
proposed plea agreement, the United States offered to dismiss the drug conspiracy
count and recommend a two-year prison sentence if Taylor pled guilty to the money
laundering count. In circumstances that are unclear, Taylor did not accept the plea,
and the case proceeded to trial. At the close of the government’s case, Taylor moved
for a judgment of acquittal, which the district court granted on the money laundering
count. The jury found Taylor guilty on the drug conspiracy count, and Taylor

      1
        Taylor moved to dismiss this appeal for lack of jurisdiction, arguing the
district court’s order is not final because the district court never entered a separate
judgment. See Fed. R. Civ. P. 58(a). Though we denied Taylor’s motion, he
continues to contest jurisdiction in his brief without raising any new arguments. The
district court did not enter a separate judgment, so its January 30, 2014 order granting
Taylor’s motion to vacate became final 150 days after the order was entered. See
Fed. R. Civ. P. 58(c)(2) (when Federal Rule of Civil Procedure 58(a) requires a
separate document, a judgment is entered when it is set forth on a separate document
or when 150 days have run from entry of the dispositive order on the civil docket,
whichever comes first); Jeffries v. United States, 721 F.3d 1008, 1012-13 (8th Cir.
2013) (concluding Federal Rule of Civil Procedure 58(a)’s separate document
requirement applies in section 2255 proceedings). We have jurisdiction over the
government’s premature appeal, filed February 4, 2014, pursuant to 28 U.S.C. § 1291.
See id. at 1014.

                                          -2-
received the mandatory minimum sentence of 120 months imprisonment. See 21
U.S.C. § 841(b)(1)(A)(viii). We affirmed his conviction and sentence on direct
appeal on August 11, 2011, and denied rehearing on October 5, 2011. See United
States v. Slagg, 651 F.3d 832, 832, 850 (8th Cir. 2011). Taylor did not file a petition
for writ of certiorari and his conviction became final for the purposes of section
2255’s limitation period on January 3, 2012. See Clay v. United States, 537 U.S. 522,
532 (2003) (“[F]or federal criminal defendants who do not file a petition for certiorari
with [the Supreme] Court on direct review, § 2255’s one-year limitation period starts
to run when the time for seeking such review expires.”); Sup. Ct. R. 13(1), (3) (90-
day period for filing a petition for writ of certiorari runs from the date of the denial
of rehearing if a petition for rehearing is timely filed in the lower court).

       Taylor filed a timely motion to vacate pursuant to 28 U.S.C. § 2255, arguing
his attorneys provided ineffective assistance of counsel in three ways: (1) failing to
convey his decision to accept the plea offer to the government; (2) failing to request
a “cautionary tail” instruction;2 and (3) failing to request a lesser included offense
instruction. The district court issued an order denying Taylor’s second claim as a
matter of law and conducted an evidentiary hearing on the two remaining claims in
October 2013. In his motion and in his testimony at the evidentiary hearing, Taylor
claimed that he decided to accept the plea offer the night before trial, but his attorneys
failed to communicate that acceptance to the government before the 10 p.m. deadline
which had conditioned the offer, forcing him to forfeit the plea and proceed to trial.
His attorneys testified that Taylor was still considering the plea offer the night before
trial and decided to reject the plea offer on the morning of trial because he did not
want to plead guilty to something he believed he did not do, i.e., money laundering.




      2
       A “cautionary tail” instruction is an instruction to the jury to view testimony
from cooperating witnesses with “greater care and caution than the testimony of an
ordinary witness.” United States v. Worthing, 434 F.3d 1046, 1049 (8th Cir. 2006).

                                           -3-
       After the evidentiary hearing, Taylor moved for leave to amend his section
2255 motion to add a claim that his attorneys “were ineffective for presenting, as their
defense at trial, that Taylor’s use and sharing of drugs did not constitute conspiracy
to possess with intent to distribute drugs.” He argued this defense theory essentially
conceded his guilt and thus constituted no defense. He also noted in passing that,
even assuming he did not accept the plea offer, in accordance with his attorneys’
version of the events, he would have accepted the plea offer if he had known his
defense was going to be in effect an admission of the charged offense. The
government opposed the motion on the grounds that Taylor’s amended claim was
untimely, as it was filed outside section 2255’s one-year limitation period and did not
relate back to any of his original claims. The district court granted Taylor’s motion
to amend, finding that “[b]ecause the amendment is closely related to Taylor’s third
claim in the original 2255 petition, and because it arises out of the same conduct and
transaction, it relates back to the date of the original filing.” The court ordered the
parties to brief whether Taylor’s attorneys “provided ineffective assistance of counsel
by ‘presenting, as their defense at trial, that Taylor’s use and sharing of drugs did not
constitute conspiracy to possess with the intent to distribute drugs.’” After receiving
briefing on this issue, the district court granted Taylor’s motion to vacate on his
amended claim. The district court concluded that while Taylor’s attorneys did not
provide ineffective assistance in presenting a “mere user” defense at trial, their
misunderstanding of conspiracy law led them to give Taylor advice during plea
negotiations that was so deficient that it deprived Taylor of the ability to make an
intelligent decision as to whether to accept the proposed plea.

       The United States now appeals, arguing the district court abused its discretion
in finding Taylor’s amended claim related back to one of his original claims and thus
erred in granting relief on an untimely claim.




                                          -4-
                                    II. Discussion

       Section 2255 motions must be filed within one year of the date the judgment
becomes final. 28 U.S.C. § 2255(f)(1). Taylor’s judgment became final for section
2255 purposes on January 3, 2012. He timely filed a section 2255 motion in October
2012 and sought to amend that motion in October 2013, after the limitation period
had expired. “Claims made in an untimely filed motion under § 2255 may be deemed
timely if they relate back to a timely filed motion as allowed by Federal Rule of Civil
Procedure 15(c).” Dodd v. United States, 614 F.3d 512, 515 (8th Cir. 2010). The
district court found Taylor’s amended claim related back to one of his original, timely
claims. “‘We review a district court’s application of Rule 15(c) for an abuse of
discretion.’” Id. (quoting United States v. Hernandez, 436 F.3d 851, 857 (8th Cir.
2006)).

       An amendment to a pleading relates back to the original pleading when “the
amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. P. 15(c)(1)(B). “To arise out of the same conduct, transaction, or occurrence, the
claims must be ‘tied to a common core of operative facts.’” Dodd, 614 F.3d at 515
(quoting Mayle v. Felix, 545 U.S. 644, 664 (2005) (analyzing relation back in the
context of a 28 U.S.C. § 2254 petition)). New claims must arise out of the “‘same set
of facts’” as the original claims, and “[t]he facts alleged must be specific enough to
put the opposing party on notice of the factual basis for the claim.” Id. (quoting
Mandacina v. United States, 328 F.3d 995, 1000 (8th Cir. 2003)).

        In this case, the government argues that the district court erred in concluding
Taylor’s amended claim related back to one of his original claims and thus in granting
relief on an untimely claim. In his motion for leave to amend before the district court,
Taylor did not argue that his amended claim related back, but instead made a tolling
argument, claiming his habeas counsel provided ineffective assistance in failing to

                                          -5-
present this issue. On appeal, he abandons that argument and fails to present any
relation-back argument, claiming instead that the district court granted relief sua
sponte and thus relation back is not required. We disagree.

       “[W]e have held that Fed. R. Crim. P. 52, which allows a court to consider
‘plain error that affects substantial rights . . . even though it was not brought to the
court’s attention,’ provides us with a basis for granting § 2255 relief on appeal on
grounds that the petitioner did not raise.” United States v. Daily, 703 F.3d 451, 454
(8th Cir. 2013) (second alteration in original). We have also held that district courts
have this power. Id. But the record before us does not give any indication the district
court acted, or intended to act, sua sponte. The district court granted Taylor’s motion
to amend, and the language in its order granting Taylor’s motion to vacate makes
clear it was granting relief on his amended claim. The district court did not conduct
a plain error analysis under Rule 52(b), nor did it alert the parties it was acting sua
sponte or give them an opportunity to respond. See Day v. McDonough, 547 U.S.
198, 210 (2006) (“Of course, before acting on its own initiative, a court must accord
the parties fair notice and an opportunity to present their positions.”). The district
court did not grant relief sua sponte, and thus Taylor’s amended claim had to relate
back to one of his original claims to be timely.

       The district court granted Taylor’s motion to amend “[b]ecause the amendment
is closely related to Taylor’s third claim in the original 2255 petition [failure to
request a lesser included instruction], and because it arises out of the same conduct
and transaction.” In claim number three in his original petition, Taylor argued that
his counsel was ineffective for failing to request a lesser included conspiracy-to-
possess jury instruction because, given the evidence presented, the instruction would
have been appropriate, the district court would have given it, and there was a
reasonable probability the jury would have found Taylor guilty only of the lesser
charge. In his amended petition, Taylor argued that the “mere user” defense theory
his attorneys presented at trial afforded him no defense at all to the conspiracy charge

                                          -6-
because their admission that he used and shared drugs essentially constituted an
admission that he was guilty of conspiracy to possess drugs with intent to distribute
under Eighth Circuit law.

       Any similarities between these two claims are so general that we cannot say
they arise out of the same set of facts or that the original petition would have provided
notice of Taylor’s amended claim. The original claim referred specifically to the
failure to request a single specific jury instruction. The amended claim referred
generally to Taylor’s primary defense theory throughout the trial. The entire trial is
not one transaction or occurrence for the purposes of Rule 15(c). See Mayle, 545
U.S. at 661 (rejecting argument that the trial itself is the transaction or occurrence, as
that approach is “boundless” and “‘views “occurrence” at too high a level of
generality’” (quoting United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000)));
see also Mandacina, 328 F.3d at 1002 (holding district court did not abuse its
discretion in finding amended claim of pre-trial error did not relate back to original
claim of separate pre-trial error, as claim relating to failure to investigate some
evidence was generally similar in time but not type to claim relating to failure to
discover other evidence). And the facts alleged in Taylor’s original claim would not
have put the government on notice that he was challenging his attorneys’ entire
defense strategy. See Dodd, 614 F.3d at 515 (“The facts alleged must be specific
enough to put the opposing party on notice of the factual basis for the claim. Thus,
it is not enough that both an original motion and an amended motion allege
ineffective assistance of counsel during a trial.” (citation omitted)); Hernandez, 436
F.3d at 858 (concluding relation back was not proper where “[t]he facts alleged in the
original claim were not such that would put the opposition on notice” of the issue
raised in the amended claim). Taylor’s amended claim did not relate back to his
original lesser-included-instruction claim.

      Taylor’s amended claim also did not relate back to either of his other original
claims. His amended claim did not relate back to the second original claim, failure

                                           -7-
to request a “cautionary tail” instruction, for the same reason it did not relate back to
his third claim, namely, because the claims do not arise from the same transaction or
occurrence. The facts underpinning Taylor’s amended trial-conduct claim are even
more distant from those supporting his first original claim, failure to convey
acceptance of the plea offer. To the extent his motion to amend addressed his
attorneys’ conduct during plea negotiations—which, we note, was limited, as he
mentioned plea negotiations in passing and asked to add only a trial-conduct
claim—the two claims do not arise out of the same set of operative facts. Taylor’s
original claim arises from his attorneys’ alleged failure to communicate his
acceptance of the plea offer to the government the night before trial. It requires a
finding that he in fact instructed his attorneys to accept the plea offer. His amended
claim arises from his attorneys’ alleged failure to properly advise him on conspiracy
law, which led to his rejection of the plea offer. Significantly, it requires a finding
that he decided not to accept the plea offer, which directly contradicts Taylor’s
assertion in his original claim that he instructed his attorneys to accept the plea offer.
These two claims do not arise from the same set of facts because they depend on two
different versions of the facts that are inconsistent and mutually exclusive. Thus we
conclude the district court abused its discretion in finding Taylor’s untimely amended
claim related back to one of his original claims. Taylor’s amended claim was time
barred. See United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999).

                                    III. Conclusion

      Because the only claim on which the district court granted relief was untimely
and did not relate back to any of Taylor’s original claims, we reverse the district
court’s judgment and remand with instructions to reimpose Taylor’s sentence.




                                           -8-
KELLY, Circuit Judge, concurring.

       In the context of a motion under 28 U.S.C. § 2255, an evidentiary hearing is
designed to flesh out details not apparent in the record. Often those details relate to
claims of ineffective assistance of counsel, which we frequently tell defendants to
save for collateral proceedings “where the factual record can be fully developed.”
United States v. Jett, 782 F.3d 1050, 1052 (8th Cir. 2015). It may be the case that, as
it happened here, the evidentiary hearing reveals facts to the district court not
otherwise known that suggest the petitioner’s sentence “was imposed in violation of
the Constitution . . . of the United States.” 28 U.S.C. § 2255. In that situation, a
district court may grant relief on the § 2255 motion, if the new facts evince a “‘plain
error that affects substantial rights . . . even though it was not brought to the court’s
attention.’” United States v. Daily, 703 F.3d 451, 454 (8th Cir. 2013) (quoting Fed.
R. Crim. P. 52(b)). Thus, testimony that was unexpected, unanticipated, or even
unknown at the time a petitioner files a § 2255 motion might be introduced during an
evidentiary hearing on that motion. Such is the nature of evidentiary hearings, which
provide the parties an opportunity to develop claims that are often highly fact-
intensive.

       In this case, as the court concludes, there is no evidence that the district court
granted Taylor relief sua sponte pursuant to Rule 52; and Taylor does not seek
plain-error review of the district court’s decision not to grant sua sponte relief. Thus,
I agree that Taylor’s argument relying on this theory is misplaced and does not
provide a basis for affirming the district court’s judgment. Nevertheless, I find it
important to reiterate that district courts maintain the ability under Rule 52 to address
sua sponte an issue not raised by the petitioner. If it becomes apparent to the district
court during the course of a habeas proceeding that an error has occurred—an error




                                          -9-
not previously raised by the petitioner—and if that error is both plain and affects a
substantial right, the court has the authority to notice it and, if warranted, to provide
relief.
                         ______________________________




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