United States District Court, S.D. Ohio, Western Division, Dayton
A. Sargus, Jr. District Judge.
DECISION AND ORDER DENYING MOTION TO AMEND
Michael R. Merz United States Magistrate Judge.
action under 28 U.S.C. § 2255, brought pro se
by Defendant Frederick McShan, is before the Court on
McShan's Motion to Amend (ECF No. 502). In it he asserts
a new theory of relief under Rehaif v. United
States, 139 S.Ct. 2191 (2019), which held that the
mens rea requirement of knowledge applies to the
crime of being in possession of a firearm while being an
motion to amend is a nondispositive pretrial motion which is
within the decisional authority of a Magistrate Judge in the
first instance. Monroe v. Houk, No. 2:07-cv-258,
2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23,
2016)(Sargus, C.J.); McKnight v. Bobby, 2017 U.S.
Dist. LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.).
Rules Governing § 2255 Cases do not expressly speak to
amendment of § 2255 motions, but authorize application
of the Federal Rules of Civil Procedure when not inconsistent
with the § 2255 Rules. This Court therefore applies
Fed.R.Civ.P. 15 to motions to amend in these cases.
general standard for considering a motion to amend under
Fed.R.Civ.P. 15(a) was enunciated by the United States
Supreme Court in Foman v. Davis, 371 U.S. 178
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In
the absence of any apparent or declared reason -- such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of any allowance of the amendment, futility of
amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125
F.3d 974, 977 (6th Cir. 1997)(citing
considering whether to grant motions to amend under Rule 15,
a court should consider whether the amendment would be
futile, i.e., if it could withstand a motion to dismiss under
Rule 12(b)(6). Hoover v. Langston Equip. Assocs.,
958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248
(6th Cir. 1986); Marx v. Centran Corp.,
747 F.2d 1536 (6th Cir. 1984); Communications
Systems, Inc., v. City of Danville, 880 F.2d 887
(6th Cir. 1989); Roth Steel Products v. Sharon
Steel Corp., 705 F.2d 134, 155 (6th Cir.
1983); Neighborhood Development Corp. v. Advisory
Council, 632 F.2d 21, 23 (6th Cir. 1980);
United States ex rel. Antoon v. Cleveland Clinic
Found., 978 F.Supp.2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc.,
2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio March 31, 2011)
noted in the Report and Recommendations recommending
dismissal of McShan's original § 2255 Motion, McShan
was denied certiorari review by the Supreme Court in 2019 and
his original Motion was therefore timely. Because the Motion
to Amend has also been filed in 2019, it is also timely, even
though the amendment does not “relate back” under
Fed.R.Civ.P. 15 because it arises from a different set of
the question before the Court is whether McShan's
proposed amendment states a claim on which habeas relief
under § 2255 could be granted or whether, on the other
hand, amendment would be futile because the amended motion
does not state such a claim.
on Rehaif, McShan claims that it applies to his
statutes of conviction, 21 U.S.C. § 846 and 841, and
requires the Government to prove that he knew (1) he was a
member of the class of persons required to register under the
Controlled Substances Act, and (2) that he conspired with a
class of persons required to register under the Act (Motion,
ECF No. 502, PageID 4555). Based on this theory, McShan
claims the indictment does not charge an offense.
Superseding Indictment in this case charges McShan in Count
One with knowingly, intentionally, and unlawfully conspiring
with others to distribute in excess of one kilogram of heroin
in violation of 21 U.S.C. § 846 (ECF No. 84, PageID
315). Counts Seven, Nine, Ten, Eleven, Fourteen, Sixteen,
Seventeen, Eighteen, Twenty-One, Twenty-Two, Twenty-Three,
and Twenty-Four all charge McShan with knowingly and
intentionally possessing heroin in an unspecified amount om
particular dates with the intent to distribute it.
provides no basis for relief in this case at all. First,
Rehaif interprets an entirely different statute, 18
U.S.C. § 924. Second, Rehaif was handed down
well after McShan was convicted and does not state a new rule
of constitutional law which the Supreme Court has held
appl9ied retroactively to cases on collateral review. Indeed,
Rehaif states no rule of constitutional law
whatever, much less a new “watershed” rule of
constitutionally-mandated criminal procedure. See Teague
v. Lane, 489 U.S. 288 (1989). Third, to the extent this
claim asserts the Superseding ...