January 9, 2014
UNITED STATES OF AMERICA, Plaintiff,
RICHARD EDWARDS, JR., Defendant.
OPINION & ORDER
KAREN K. CALDWELL, Chief District Judge.
On January 15, 2013 the Court adopted Magistrate Judge Smith's report and recommendation that Edwards's § 2255 motion be denied and that no certificate of appealability be issued. (DE 115). On September 11, 2013, the Court of Appeals declined to issue a certificate of appealability. (DE 120).
Edwards has now filed a "Motion Preserving a Claim of Error Pursuant to Rule 51." (DE 121). In his motion, Edwards asks the Court to "preserve" his claim that he is entitled to relief under Alleyne v. United States, 133 S.Ct. 215 (2013). Because of the Supreme Court's holding in Alleyne, Edwards insists that the armed career criminal enhancement that he was given at sentencing violates his Sixth Amendment rights. (DE 121). In his original appeal, Edwards made no claim that that he was improperly classified as an armed career criminal. Thus, there is no claim to preserve. Additionally, the Court previously denied Edwards's § 2255 motion, also concerning the armed career criminal enhancement, on procedural and statute of limitation grounds, (DE 115) and thus, Edwards may not now attempt to pursue a claim under Alleyne for the first time in this action. Finally, "the offense level remained at a 34 regardless of whether the Defendant was found to be an armed career criminal." (DE 115). Thus, any error in classifying Edwards as an armed career criminal would be harmless. Accordingly, it is hereby
ORDERED that Edwards's "Motion Preserving a Claim of Error Pursuant to Rule 51" (DE 121) is DENIED.