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Howard v. United States

March 1, 2007

TOMMY HOWARD, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge

OPINION AND ORDER

This matter is before the Court on the Petitioner Tommy Howard's ("Petitioner") Motion to Alter or Amend Judgment Pursuant to Rule 59(e) Conjoined with Rule 15 to Amend Pleading (doc. 54) and the Government's Response thereto (doc. 55). For the reasons indicated herein, the Court DENIES Petitioner's Motion to Alter or Amend Judgment Pursuant to Rule 59(e) Conjoined with Rule 15 to Amend Pleading.

I. Background

On June 18, 2003, a federal grand jury issued a four count indictment alleging: (1) possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (2) possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841; (3) possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841; and (4) possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (doc. 12). Petitioner entered a plea of guilty to Count Four, pursuant to a plea agreement (doc. 23). In the plea agreement, Petitioner acknowledged that he understood that he may be considered to be a career offender*fn1 under U.S.S.G. § 4B1.1 (doc. 22).

The Court sentenced Petitioner to 292 months, five years supervised release, a $100.00 general assessment, and a $1,000.00 fine (doc. 23). Petitioner appealed this sentence; his direct appeal was denied (Id.). Petitioner then filed a Motion to Vacate Under 28 U.S.C. § 2255, which was denied (doc. 53).

II. Petitioner's Motion

Petitioner's Motion requests relief to amend his original § 2255 motion under Rule 15 to add new arguments, and requests that the Court amend its previous ruling on Petitioner's Motion to Vacate Under 28 U.S.C. § 2255 based on Fed. R. Civ. P. 59(e) (doc. 54). Petitioner relies on U.S. v. Montanez 442 F.3d 485 (6th Cir. 2006) in arguing that his prior offenses did not constitute "controlled substance offenses," therefore the Court was in error in applying U.S.S.G. § 4B1.1 (doc. 54). Based on this error, Petitioner argues, the Court is required to re-sentence him (Id.).*fn2

The government responds that Petitioner's motion is in actuality a second or successive habeas petition (doc. 55). The government argues that Petitioner fails to make the requisite showing for a second or successive habeas petition or motion to vacate, therefore his motion must be denied (doc. 55).

III. Analysis

Because Petitioner requests that the Court amend its previous ruling on Petitioner's habeas motion, the Court must determine whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) controls. Gonzalez v. Crosby, 545 U.S. 524; 125 S.Ct. 2641 (2005) (finding that 28 U.S.C. §§ 2254 and 2244 control when the movant seeks to add a new ground for relief under his original habeas petition); Gibbs v. U.S. 2006 U.S. Dist. LEXIS 91557 (S.D. Ohio 2006) (applying Gonzalez to 28 U.S.C. § 2255 cases). When a petitioner's motion questions the reasoning for the court's resolution of his claim on the merits and not a "defect in the integrity of the federal habeas proceedings," the motion should be treated as a successive habeas petition. Gonzalez, 125 S.Ct. at 2648; Banks v. Wolfe, 2006 U.S. Dist. LEXIS 68824 (S.D. Ohio 2006). For the following reasons, this Court finds that Petitioner's motion constitutes a second or successive habeas petition, which is governed by 28 U.S.C. §§ 2255 and 2244. Therefore, this Court does not have jurisdiction to weigh Petitioner's claims for relief.

A. Petitioner's Application for Relief

Under Federal Rules of Civil Procedure 59(e) and 15 Motions to alter or amend judgment under Rule 59(e) may be granted when one of the following circumstances exists: a clear error of law; newly discovered evidence; an intervening change in controlling law; or to prevent manifest injustice. Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Section 2255, Rule 12 of the AEDPA limits the applicability of the Federal Rules of Civil Procedure in habeas actions "to the extent that they are not inconsistent with any statutory provisions or these rules." 28 U.S.C. § 2255 Rule 12.

The relevant provision of the AEDPA requires: first, certification by the appropriate court of appeals under ยง 2244; and [second], newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or [third] a new rule of constitutional ...


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