United States District Court, E.D. Kentucky, Central Division
MEMORANDUM OPINION &
Ware was indicted, along with other defendants, by a grand
jury on December 28, 2015, for one count of conspiring to
knowingly and intentionally distribute pills containing
oxycodone in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and three counts of possession with the intent to
distribute pills containing oxycodone in violation of 21
U.S.C. § 841(a)(1). [R. 150 at 2.] Mr. Ware, by way of a
plea agreement, pleaded guilty to the conspiracy count on
July 22, 2014. [R. 98.]
Ware was subsequently sentenced to ninety-six months of
imprisonment, with three months of supervised release to
follow. [See R. 115.] After the judgment was
entered, Mr. Ware moved for a new trial and asked the Court
to toll the one-year period of limitation for filing a §
2255 motion. The undersigned denied both motions, because Mr.
Ware had not proceeded to trial in the first instance and
because he did not provide evidence of any extraordinary
circumstances requiring tolling of the statute of
limitations. [R. 128.] The statute of limitations began
running upon entry of Judgment on January 22, 2015. [R. 115.]
Mr. Ware filed a § 2255 motion in December 2015. [R.
132.] This Court dismissed Mr. Ware's § 2255 motion
on July 6, 2017. [R. 171.]
before and after this Court's determination, Mr. Ware has
filed several motions in an attempt to vacate or reduce his
sentence. This Court now turns to each of them individually.
August 10, 2016, Mr. Ware filed a motion to recover $5, 500
worth of property he believed to be held by the United
States. [R. 151.] However, the United States has indicated
via motion and via affidavit that this property was never in
the possession of the United States. [R. 153.] Instead, the
United States has reason to believe that such property is
held by the Franklin County Sheriff's Office.
Id. at 2. The Franklin County Sheriff's Office
is not a party to this action, and therefore, Mr. Ware's
Motion must be dismissed for lack of jurisdiction. On October
21, 2016, Mr. Ware filed a second motion to recover the
property he believed to be in the possession of the United
States. [R. 163.] Having already determined this issue, Mr.
Ware's second motion will be denied as moot.
Mr. Ware moves to correct his Presentence Investigation
Report pursuant to § 2255. [R. 159.] The Supreme Court
has determined that federal habeas proceedings filed after
the one-year statute of limitations must relate back under
Federal Rule of Civil Procedure 15(c)(2), meaning they must
arise out of the “conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
pleading.” Mayle v. Felix, 545 U.S. 644, 655
(2005). In his December 2015 motion, Mr. Ware claimed the
United States withheld exculpatory and impeachment evidence,
he suffered from ineffective assistance of counsel for
failure to pursue or discover evidence, and his guilty plea
was not knowing and voluntary in light of the Government
withholding evidence. [R. 132.] The statute of limitations to
file § 2255 motions expired on January 22, 2016.
October 11, 2016, Mr. Ware moved for § 2255 relief to
correct his Presentence Investigation Report. [R. 159.] This
motion was well beyond the statute of limitations. Mr. Ware
does not dispute the accuracy of the enhancement, nor did he
object to the PSR at sentencing. [R. 111.] Mr. Ware merely
states his desire to remove the enhancement. Such request
does not arise out of the same conduct, transaction, or
occurrence set forth in the original § 2255 motion
pertaining to the alleged undiscovered evidence. Therefore,
this motion must be denied as untimely.
October 16, 2015, Mr. Ware petitioned for sentence reduction
under 18 U.S.C. § 3582(c)(2). [R. 125.] This Court
denied this motion on November 24, 2015. [R. 129.] Nearly a
year later, on October 16, 2016, Mr. Ware requested
reconsideration and a rehearing. [R. 160.] However, Mr. Ware
provided neither factual nor legal error in the Court's
judgment, and the Court concludes he has not demonstrated the
earlier analysis was erroneous. This motion must also be
Ware then filed a “Notice for Record of Third Party
Interest.” [R. 162.] However, the text of this motion
relates to civil insurance claims, not criminal cases.
Id. This case has no financial settlement, and
therefore, no reason for a third party ...