United States District Court, E.D. Kentucky, Northern Division, Covington
L. BUNNING, UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant's Motion to
Amend his Motion to Vacate pursuant to 28 U.S.C. § 2255.
(Doc. # 50). For the reasons set forth below, Defendant's
Motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND
was sentenced on August 24, 2017 to 300 months in prison
pursuant to a plea agreement, in which Defendant admitted to
one count of Possession with Intent to Distribute More than
50 Grams of Methamphetamine and one count of Possession of a
Firearm in Furtherance of Drug Trafficking. (Doc. # 42). On
August 29, 2018, Defendant filed a Motion to Vacate, Set
Aside or Correct Sentence under 28 U.S.C. § 2255. (Doc.
# 44). On September 24, 2018, Magistrate Judge Hanly A.
Ingram issued a Report and Recommendation
(“R&R”), wherein he recommended that
Defendant's Motion be dismissed upon initial review.
(Doc. # 46). As Defendant did not object to the R&R
within the fourteen days prescribed by the Local Rules, this
Court adopted the R&R in full on November 27, 2018 and
issued a Judgment denying Defendant's Motion to Vacate.
(Docs. # 47 and 48). On December 28th, Defendant filed a
Motion to Alter Judgment under Federal Rule of Civil
Procedure 59(e). (Doc. # 49). The Court denied that Motion on
April 9, 2019. (Doc. # 54).
submitted the instant Motion to Amend on March 7, 2019, in
which he raised two arguments. First, Defendant argues that
he is entitled to a reduced sentence under the
recently-enacted First Step Act. (Doc. # 50 at 7). Second,
Defendant argues that the district judge failed to engage in
the required colloquy under 21 U.S.C. § 851 and
therefore the Court lacked authority to impose an increased
sentence based on Defendant's prior drug-trafficking
conviction. Id. at 6. The United States filed a
Response, in which it opposed Defendant's request for a
sentence reduction under the First Step Act. (Doc. # 52).
Defendant filed a Reply. (Doc. # 53). Thus, the Motion to
Amend is ripe for the Court's review. The Court will
address Defendant's First Step Act claim in a separate
Order. The Court now turns to Defendant's argument under
21 U.S.C. § 851.
Defendant filed his Motion to Amend after this Court issued a
judgment, the Court first considers whether Defendant's
Motion to Amend is a second or successive habeas petition,
which must be certified by the Sixth Circuit Court of
Appeals. See 28 U.S.C. § 2255(h). Under
Clark v. United States, a motion to amend is not a
second or successive application for § 2255 relief until
the adjudication of the § 2255 motion is
“decisively complete, ” meaning that the
defendant “exhausted [his] appellate remedies.”
764 F.3d 653, 659-60 (6th Cir. 2014). Although Defendant
moved to amend after this Court entered a judgment denying
his § 2255 motion, the appeal period had not yet elapsed
because Defendant's Motion to Alter Judgment under Rule
59 (Doc. # 49) remained pending. See Fed. R. App. P.
4(a)(4) (extending the appeal period up until “the
entry of the order disposing of” a Rule 59 motion). As
such, Defendant's Motion is not a second or successive
§ 2255 motion and is not subject to the
successive-petition bar set forth by § 2255(h).
determined that Defendant's Motion to Amend is not a
second or successive habeas petition, the question remains
what standard governs the adjudication of Defendant's
Motion. “When a party seeks to amend a complaint after
an adverse judgment, it thus must shoulder a heavier burden
than if the party sought to amend a complaint
beforehand.” Clark, 764 F.3d at 661 (internal
quotation marks and brackets omitted). Consequently,
Defendant's Motion to Amend is not decided under the
liberal amendment regime set forth in Federal Rule of Civil
Procedure 15; rather, Defendant “must meet the
requirements for reopening a case” established by Rule
59. Id. Under Rule 59(e), a court may alter a
judgment based on: (1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling
law; or (4) a need to prevent manifest injustice.
contends that the Court erred when it took into account his
prior felony drug conviction in calculating his sentence.
Specifically, Defendant alleges that the Court failed to
engage in a colloquy under 21 U.S.C. § 851(b). That
If the United States attorney files an information under this
section, the court shall after conviction but before
pronouncement of sentence inquire of the person with respect
to whom the information was filed whether he affirms or
denies that he has been previously convicted as alleged in
the information, and shall inform him that any challenge to a
prior conviction which is not made before sentence is imposed
may not thereafter be raised to attack the sentence.
review of the record indicates that the presiding judge did
in fact engage in the required colloquy under § 851(b).
After accepting Defendant's guilty plea at the plea
hearing, then-District Court Judge Thapar asked Defendant if
he understood that he had a prior qualifying conviction.
(Doc. # 57 at 23:6-11). Furthermore, Judge Thapar made clear
to Defendant that he had a right to demand a hearing in which
the government would have to prove the existence of the prior
conviction. Id. at 23:12-19.
the Court had failed to follow the colloquy procedure as laid
out in § 851(b), Defendant's argument is meritless
because failure to engage in a § 851(b) colloquy is
harmless “where a defendant neither filed the requisite
response under § 851(c)(1) challenging the validity of
his prior drug convictions, nor objected at sentencing to the
use of these convictions” to trigger a higher sentence.
United States v. Walker, 761 Fed.Appx. 547, 552 (6th
Cir. 2019) (internal quotation marks, brackets, and ellipses
until now, Defendant has never objected to the use of his
prior drug trafficking convictions. Furthermore, there is no
evidence that he “file[d] a written response to the
[government's] information” contesting the use of
the conviction, as 21 U.S.C. § 851(c) requires of
defendants who wish to deny a prior conviction or assert that
it is invalid. Therefore, any error by the district court as
it related to the colloquy requirement was harmless.
Walker, 761 Fed.Appx. at 553. Because harmless error
cannot constitute a basis for “vacating, modifying, or
otherwise disturbing a judgment, ” Fed.R.Civ.P. 61,
Defendant is unable to obtain relief under Rule 59(e).