United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION & ORDER
B. Russell, United States District Court Senior Judge
matter is before the Court upon Motion for Leave of Court to
Allow Supplemental Grounds with Grounds So Attached for
Review filed by Movant/Defendant, Barry Kenton Beard. (R.
144). The United States has responded, and Beard has replied.
(R. 152: R. 159). Pursuant to Order of the United States
Court of Appeals for the Sixth Circuit, the instant Motion
has been remanded for consideration “as a post-judgment
motion to amend under Rules 59 and 60 of the Federal Rules of
Civil Procedure.” (R. 154). This Court referred the
matter to Magistrate Judge King for a Report and
Recommendation. (R. 160). A Report and Recommendation has
been issued, and Beard filled an objection. (R. 161). The
Matter is now ripe for adjudication. For the foregoing
reasons, the Court DENIES Beard's Motion for Leave of
Court to Allow Supplemental Grounds with Grounds So Attached
for Review, (R. 144) .
executed a search warrant on December 15, 2012, at
Beard's home and discovered a quantity of methamphetamine
and a firearm. Arguing that it was invalid, Beard moved to
suppress all fruits of the search. (R. 24, Defendant's
Memorandum in Support of His Motion to Suppress). The Court
held a suppression hearing on October 29, 2013. The Court
subsequently denied Beard's Motion to Suppress. (R. 49,
Memorandum Opinion and Order).
the Court denied Beard's Motion to Suppress, he signed a
plea agreement in which he plead guilty to all four charges
against him. (R. 55, Plea Agreement). However, on July 22,
2014, after dismissing his first court appointed counsel,
Edward Box, Beard moved pro se to withdraw his guilty plea.
(R. 69, Pro Se Letter).
August 15, 2014, the Court convicted and sentenced Beard on
three methamphetamine counts and one count of being a felon
in possession of a firearm. (R. 75 Judgment). Beard had three
prior violent felony convictions: (1) Livingston Circuit
Court No. 88-CR-34, Burglary, 1st Degree, (2) Crittenden
Circuit Court No. 90-CR-20, Burglary, 1st Degree, and seven
counts of Burglary, 3rd Degree, and (3) Crittenden Circuit
Court No. 01-CR-14, Enhanced Aggravated Assault, 4th Degree
-- Spouse Abuse. (R.70, Presentencing Report, ¶ 43). As
such, pursuant to 18 U.S.C. § 924(e)(1), the Court
imposed upon Beard a 15-year sentence enhancement for being
an armed career criminal. (R. 75 Judgment). At this point,
Beard was represented by his second court appointed counsel,
August 25, 2014, Beard filed a notice of appeal informing the
Court that he was dissatisfied with Olsen. (R. 79, Notice of
Appeal). Olsen was dismissed, and the United States Court of
Appeals for the Sixth Circuit appointed Paul Neel, Jr. as
counsel. (R. 81, Letter from USCA-6 at 546). Neel filed a
motion to withdraw and indicated no colorable issues on
appeal. The Sixth Circuit granted this motion. (R. 92, USCA-6
Opinion and Order at 602).
August 17, 2015 Beard filed a Motion to Vacate under U.S.C.
§ 2255. He sought relief on three grounds: (1)
ineffective assistance of counsel during plea negotiations
because Box mishandled the plea-negotiation process and the
suppression hearing, (2) ineffective assistance of counsel
during sentencing because Kevin Olsen, his second court
appointed attorney, allowed the Court to present an incorrect
sentencing report, and (3) prosecutorial misconduct because
the Court imposed an illegal 15-year sentence based on
evidence that should have been suppressed. (R. 97, Motion to
February 9, 2017, the Court held an evidentiary hearing on
Beard's Motion to Vacate. (R. 132 Transcript of
Evidentiary Hearing). Beard was represented by Andrew Coiner.
During the hearing, Beard abandoned the second and third
grounds for relief asserted in his Motion. (Id.).
The Court subsequently denied Beard's § 2255 Motion
to Vacate. (R. 137 Order and Judgment at 846). With its
ruling, the Court also denied Beard a certificate of
appealability (“COA”). (Id.).
to Federal Rule of Civil Procedure 59(e), Beard then moved to
alter the Court's judgment to include a COA. (R. 138
Defendant's Rule 59(e) Motion to Alter or Amend Judgment
to Include Certificate of Appealability). The Court denied
Beard's 59(e) Motion, concluding that reasonable jurists
could not disagree with Court's denial of Beard's
§ 2255 Motion to Vacate. R. 145 Memorandum Opinion and
Order). Beard then filed the instant Motion for Leave of
Court to Allow Supplemental Grounds with Grounds so Attached
for Review. Before, the Court ruled on that Motion, Beard
appealed the Court's denial of his 59(e) Motion
concerning the COA. (R. 147 Notice of Appeal). The Court then
concluded that Beard's Motion for Leave of Court to Allow
Supplemental Grounds with Grounds so Attached for Review
constituted a successive § 2255 motion. (R. 153 Order at
909). Accordingly, the Court transferred that Motion to the
Sixth Circuit. (Id.). The Sixth Circuit affirmed the
Court's ruling on the COA. (R. 154, Order of United
States Court of Appeals). However, citing Clark v. United
States, 764 F.3d 653 (6th Cir. 2014), the Sixth Circuit
remanded Beard's Motion for Leave of Court to Allow
Supplemental Grounds with Grounds so Attached for Review.
(Id.). In remanding, the Sixth Circuit instructed
the Court to consider Beard's Motion for Leave of Court
to Allow Supplemental Grounds with Grounds so Attached for
Review as a post-judgment motion to amend under Federal Rules
of Civil Procedure 59 and 60. (Id.).
remand, the Court referred the matter to Magistrate Judge
King. (R. 160). Judge King recommends that Beard's Motion
be Denied. (R. 161, Report and Recommendation). Beard
objects. (R. 163, Objection to Report and Recommendation).
After, a de novo review, this Court adopts Judge King's
Report and Recommendation and denies Beard's Motion for
the reasons set forth below.
may grant a motion to alter or amend pursuant to Federal Rule
of Civil Procedure 59(e) “if there is a clear error of
law, newly discovered evidence, an intervening change in
controlling law or to prevent manifest injustice.”
GenCorp v. Am. Int'l, 178 F.3d 804, 834 (6th
Cir. 1999) (internal citations omitted). “[C]ourts
typically will consider additional evidence accompanying a
Rule 59(e) motion only when it has been newly discovered, and
that to [c]onstitute ‘newly discovered evidence,'
the evidence must have been previously unavailable.”
Id. A Rule 59(e) motion does not provide plaintiffs
another opportunity to argue the merits of their case.
Sault Ste. Marie Tribe of Chippewa Indians v.
Engler, 146 F.3d 367, 374 (6th Cir. 1998).
Federal Rule of Civil Procedure 60(b), a party must show
either: mistake under subsection (1); newly discovered
evidence under subsection (2); fraud under subsection (3);
show that the judgment is void as required by subsection (4);
show that the judgment should not have prospective
application as required by subsection (5); or show any
exceptional circumstances justifying relief under subsection
(6), in order to receive relief from judgment. FRCP 60(b);
Walker v. Lifeskills, Inc.,56 Fed.Appx. 251 (6th
Cir. 2003). However, “[t]he standard for granting a
Rule 60 motion is significantly higher than the standard
applicable to a Rule 59 ...