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Beard v. United States

United States District Court, W.D. Kentucky, Paducah

February 8, 2019

BARRY KENTON BEARD MOVANT/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDANT/PLAINTIFF

          MEMORANDUM OPINION & ORDER

          Thomas B. Russell, United States District Court Senior Judge

         This 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) .

         BACKGROUND

         Authorities 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).

         After 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).

         On 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, Kevin Olsen.

         On 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).

         On 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 Vacate).

         On 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.).

         Pursuant 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.).

         Upon 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.

         LEGAL STANDARD

         A court 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).

         Under 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 ...


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