The opinion of the court was delivered by: James S. Gwin, United States District Judge:
Defendant-Petitioner Randy S. Delano moves pro se to amend and supplement his § 2255 motion with an actual innocence claim and an argument that he is entitled to the benefit of "the new retroactive crack law amendment." [Doc. 129.] Because he fails to present any new evidence, and the Fair Sentencing Act of 2010 is not retroactive, the Court DENIES his motion.
Following a jury trial, Defendant-Petitioner Randy S. Delano was convicted of possession with intent to distribute cocaine and crack cocaine. [Doc. 89.] On July 21, 2011, the Defendant-Petitioner filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, saying that there was insufficient evidence to support his conviction. In support of the motion, Delano says a witness called by the government, Loreal Johnson, admitted that the drugs in question were hers, and that his attorney was ineffective for failing to file a direct appeal. [Doc. 118.]
The Defendant-Petitioner now seeks to amend his motion in two ways. First, he says that his motion should have included a claim of actual innocence, and that if he is permitted to introduce a tape recording of Loreal Johnson's post-arrest statement, the tape recording "would support [his] claim of actual innocence." [Doc. 129 at 3-4.] Second, he says that if any relief "under the new crack amendment law is applicable it should be applied." Id. at 4.
A district court properly denies a motion to supplement a § 2255
motion where the proposed argument makes claims based on inapplicable
authority, McCall v. United States, No. 99-3524, 2000 WL 1597853 (6th
Cir. 2000), where an issue is not "properly raised" because the legal
argument has been specifically rejected, id. at *1, or where cited
authority "is not applicable." Id. at *3. "Motions to amend 'should be
denied if the amendment . . . would be futile.'" United States v.
F. App'x 461, 465 (6th Cir. 2011) (quoting Colvin v. Caruso, 605 F.3d
282, 294 (6th Cir. 2010)). The Defendant-Petitioner's Motion suffers
both deficiencies and the proposed amendments
would be futile. First, the Loreal Johnson tapes (there are
two*fn1 ) are not newly discovered evidence and
cannot establish actual innocence. Schlup v. Delo, 513 U.S. 298,
327-28 (1995) (explaining that "new evidence" required to establish
actual innocence refers to "relevant evidence that was either excluded
or unavailable at trial."). It is undisputed that tapes were neither
excluded nor unavailable at trial. They were provided to the defense
in discovery, [Doc. 130 at 3], and defense counsel chose
not introduce them despite the Defendant-Petitioner's
request. [Doc. 118 at 4.] This may be because, as the government says,
the tapes are in fact inculpatory, [Doc. 130 at 3], but they cannot
make it "more likely than not that no reasonable juror" could have
convicted the Defendant-Petitioner, Schlup, 513 U.S. at 327, because
Loreal Johnson testified on cross-examination that the drugs were
hers, not his, [Doc. 91 at 60] and the jury nonetheless chose not to
credit that testimony in reaching its verdicts. [Doc. 118 at 4.] A
reasonable juror could have credited instead the testimony of Loreal
Johnson that they were on the Defendant-Petitioner's lap before he
threw them on hers and told her to "stick them down [her] pants,"
[Doc. 91 at 24-25], and the testimony of Special Agent Robert McBride
that the Defendant-Petitioner admitted that the drugs were his. [Doc.
109 at 79, 91.]
Second, the Defendant-Petitioner's request to benefit from any applicable provisions of "the new crack amendment law," by which the Court understands him to mean the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010), is futile. The Defendant-Petitioner was sentenced well before enactment on June 17, 2008, [Doc. 88], and the Act's amendments to 21 U.S.C. § 841 are not retroactive. United States v. Carradine, 621 F.3d 575, 580 (6th Cir. 2010).
For the foregoing reasons, the Court DENIES the Defendant-Petitioner's motion. IT IS SO ORDERED.
JAMES S. GWIN UNITED STATES ...