F I L E D
United States Court of Appeals
Tenth Circuit
OCT 28 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-3108
v. (D.C. No. 97-CV-3126)
(Kansas)
DAVID LYNN JOHNSON,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
David L. Johnson brought this pro se petition to vacate, set aside, or correct
a sentence pursuant to 28 U.S.C. § 2255, alleging several constitutional errors.
The district court denied relief, concluding that the claims were without merit,
and denied Mr. Johnson’s request for a certificate for appealability. For the
reasons that follow, we deny Mr. Johnson’s renewed application for a certificate
of appealability and dismiss the appeal.
Mr. Johnson was convicted for distributing and possessing phenyl-2-
propane in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C), and sentenced to one
hundred sixty-two (162) months incarceration, followed by a six-year term of
supervised release. We affirmed in part and remanded for resentencing. United
States v. Johnson, 12 F.3d 1540 (10th Cir. 1993). Several years after his
resentencing, Mr. Johnson brought this 28 U.S.C. § 2255 petition alleging four
issues. 1 The government filed a response and Mr. Johnson filed his first amended
petition. The district court denied relief in part but granted relief for excessive
sentencing due to the absence of evidence that the government had provided
enhancement information.
The government moved for reconsideration, offering evidence that it had
1
The issues raised below were a Fifth Amendment violation for improper
use of defendant’s post-Miranda silence; excessive sentencing beyond the
maximum time authorized by law; and ineffective assistance of counsel for errors
associated with the misuse of post-Miranda silence and excessive sentencing.
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properly filed the required enhancement information pursuant to 21 U.S.C. § 851
and had delivered a copy to Mr. Johnson’s attorney. Seven months after Mr.
Johnson filed the original claim and two months after the district court decided
the case, Mr. Johnson filed a second motion to amend his section 2255 claim,
seeking to add three new contentions. 2 The district court denied this motion as
untimely, pointing out that petitioner could have raised the new issues earlier and
that he offered no explanation for the delay. The court alternatively held the
amendment would be futile because petitioner would lose on the merits. The
court also granted the government’s motion to reconsider the court’s first ruling
and held Mr. Johnson was not entitled to resentencing as the court had originally
determined. The court then denied Mr. Johnson’s request for a certificate of
appealability.
A habeas petitioner is required to obtain a certificate of appealability prior
to seeking appellate review of final orders in a proceeding under 28 U.S.C. §
2255. A habeas petitioner is entitled to a certificate of appealability only if he
has made “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253 (c)(2). We review a petitioner’s application de novo.
2
The new issues were ineffective assistance of counsel during plea
negotiations, failure of the court to comply with Rule 11, and erroneous denial at
sentencing of a reduction for acceptance of responsibility.
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Mr. Johnson first contends that his second motion to amend is procedural
and not subject to a certificate of appealability under 28 U.S.C. § 2253 (c)(1)(B).
Therefore, he asserts, his motion to amend should be reviewed on the merits. We
reject this argument. Mr. Johnson’s second motion to amend is a part of his
section 2255 appeal and is thus subject to section 2253.
In his request for a certificate of appealability, Mr. Johnson argues that the
district court’s denial of his second motion to amend was a violation of his
constitutional right of due process and he reasserts the merits of the issues he
wants to amend to include. He does not raise the issues he asserted in his first
amended petition on which the district court denied relief.
We are not persuaded by Mr. Johnson’s arguments. We have clearly stated
that untimeliness alone is a sufficient reason to deny leave to amend. Hom v.
Squire, 81 F.3d 969, 973 (10th Cir. 1996) (citing Frank v. U. S. West, Inc.,
3 F.3d 1357, 1365 (10th Cir. 1993)). Mr. Johnson’s second motion to amend was
seven months late and two months after the court’s hearing on the merits. The
motion also offered no new facts or law that couldn’t have been included earlier.
The district court properly denied Mr. Johnson’s second motion to amend and
certainly did not violate his constitutional rights in doing so. Consequently, the
merits of the second amended motion were not before the district court and are
not before us.
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Mr. Johnson has failed to make a “substantial showing of the denial of a
constitutional right.” Consequently, we DENY his request for a certificate of
appealability and DISMISS his appeal. See 28 U.S.C. § 2253 (c).
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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