United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Petitioner's
“Motion to Amend and for Reconsideration” [CV
Petitioner pleaded guilty pursuant to a written plea
agreement to one count of possession with intent to
distribute methamphetamine, in violation of 21 U.S.C. §
841(a)(1). [CR Doc. 30]. On March 20, 2013, the Petitioner
was sentenced to a term of 144 months' imprisonment. [CR
Doc. 53]. The Petitioner did not file a timely notice of
appeal. Instead, he filed a motion to vacate pursuant to 28
U.S.C. § 2255, arguing that his attorney had provided
ineffective assistance by not filing a timely notice of
appeal and arguing that his criminal history score was
improperly calculated in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). [CR Doc. 70]. This Court granted the § 2255
motion to the extent that the Court entered an amended
judgment to allow the Petitioner to file a timely notice of
appeal, and the Court dismissed the Petitioner's
remaining claims without prejudice. [CR Doc. 71].
this Court granted Petitioner an extension of time to file
his notice of appeal, the Petitioner appealed to the Fourth
Circuit, arguing that this Court had erred in holding that
his prior conviction supported a criminal history category of
II and that he should be allowed to raise this issue despite
the appellate waiver in his plea agreement. See United
States v. Hitt, No. 15-4283, Doc. 16 (4th Cir.). On
October 23, 2015, the Fourth Circuit dismissed the appeal,
holding that “the issue [Petitioner] seeks to raise on
appeal falls squarely within the compass of his waiver of
appellate rights.” [CR Doc. 90 at 1].
November 2015, this Court granted Petitioner's motion to
reduce his sentence pursuant to Sentencing Guidelines
Amendment 782 and reduced his sentence to 121 months of
imprisonment. [CR Doc. 92].
October 18, 2016, the Petitioner filed another motion to
vacate, again arguing that the Court incorrectly calculated
his criminal history score. [CV Doc. 1]. The Court denied the
Petitioner's motion to vacate on January 30, 2017, and
denied a certificate of appealability. [CV Docs. 6, 7]. The
Petitioner did not appeal.
than sixty (60) days later, on April 3, 2017, the Petitioner
filed the present “Motion to Amend and for
Reconsideration, ” seeking to amend his prior Motion to
Vacate to include a claim for ineffective assistance of
counsel at sentencing. [CV Doc. 8].
Court may grant a motion to amend even after judgment has
been entered against a petitioner. Puzey v. United
States, No. 3:00-CR-57-16, 2014 WL 11381083, at *3 (N.D.
W.Va. July 25, 2014) (citing Laber v. Harvey, 438
F.3d 404, 427 (4th Cir. 2006) (stating “a district
court may not deny such a motion simply because it has
entered judgment against the plaintiff”). The Court,
however, “may not grant the post-judgment motion unless
the judgment is vacated pursuant to Rule 59(e) or
Fed.R.Civ.P. 60(b).” Laber, 438 F.3d at 427.
the Court finds no reason to vacate its prior Judgment. By
his proposed amendment, the Petitioner seeks to cast his
claim regarding the calculation of his criminal history
category in the form of an ineffective assistance of counsel
claim. [See CV Doc. 8]. As the Court noted in its
prior Order, however, the Petitioner's criminal history
category was correctly calculated. Further, the Petitioner
cannot show any prejudice, particularly when the Court varied
downward to sentence him essentially as if he had no criminal
history. [See CV Doc. 6 at 3, 8]. Accordingly, the
Petitioner's motion to amend and/or for reconsideration
to Rule 11(a) of the Rules Governing Section 2255 Cases, the
Court declines to issue a certificate of appealability as the
Petitioner has not made a substantial showing of a denial of
a constitutional right. 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003)
(in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel, 529 U.S. 473, 484
(2000) (holding that when relief is denied on procedural
grounds, a petitioner must establish both that the
correctness of the dispositive procedural ruling is
debatable, and that the petition states a debatably valid
claim of the denial of a constitutional right).
IS, THEREFORE, ORDERED that the Petitioner's
“Motion to Amend and for Reconsideration” [CV
Doc. 8] is DENIED.
IS FURTHER ORDERED that pursuant to Rule 11(a) of
the Rules Governing Section 2255 Cases, the Court declines to
issue a certificate of appealability.