Argued June 17, 2014.
Appeal from the United States District Court for the Eastern District of Kentucky at London. Nos. 6:07-cr-13-5; 6:10-cv-7128--Danny C. Reeves, District Judge.
Joshua I. Hammack, JONES DAY, Washington, D.C., for Appellant.
Brandon L. Fyffe, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Jennifer L. Swize, Jennifer Bradley Lichter, JONES DAY, Washington, D.C., for Appellant.
Charles P. Wisdom, Jr., Elisabeth A. Sigler, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: SILER, GILMAN, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge.
Deidre Clark, a pro se federal prisoner, filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, claiming that the assistance of her trial and appellate counsel was ineffective and that her plea was not knowing or voluntary. The district court denied both her original § 2255 motion and her first motion to amend and dismissed with prejudice Clark's application for relief under § 2255. Clark did not timely appeal that judgment. Rather, on October 3, 2011, Clark filed a second motion to amend, which was identical to her first motion to
amend. The district court denied her second motion to amend for the same reasons underlying its denial of her first motion to amend--namely, that Clark filed the motion after the magistrate judge recommended a disposition of her § 2255 motion and, moroever, the claims Clark sought to add were futile. This court issued a certificate of appealability (COA) as to the denial of Clark's second motion to amend. We now affirm.
On March 29, 2007, a federal grand jury returned a second superseding indictment charging Clark with making a false statement to a federally licensed firearm dealer, in violation of 18 U.S.C. § 924(a)(1)(A), and with possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). On September 6, 2007, Clark entered a nolo contendere plea to the false-statement charge and a guilty plea to the possession charge. On June 2, 2008, the district court sentenced Clark to a term of 108 months' imprisonment, consisting of 60 months as to the false-statement charge and 108 months as to the possession charge, to be served concurrently. On direct appeal, this court affirmed Clark's convictions and sentences and granted counsel's motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
On July 20, 2010, Clark filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, claiming that the assistance of trial and appellate counsel was ineffective and that her plea was not knowing or voluntary. On July 19, 2011, the magistrate judge recommended that Clark's § 2255 motion be denied on the merits. Clark did not file objections to the magistrate judge's recommendation. Instead, on August 22, 2011, she filed a motion to amend her § 2255 motion. In her motion, Clark claimed that " due to her severe depression" she was unable to file pro se a comprehensive § 2255 motion in the first instance in July 2011. She asked the court for leave to amend her § 2255 motion to add four new claims. Two of those claims alleged that the sentence imposed by the district court violated the Fifth Amendment because the four-level enhancement for transferring a firearm to be used in a felony offense and the two-level enhancement for obstruction of justice were incorrectly applied. Clark also sought to add claims alleging selective prosecution and judicial misconduct.
On August 23, 2011, the district court denied Clark's motion to amend her § 2255 motion. First, the district court noted that requests to amend § 2255 motions are governed by Federal Rule of Civil Procedure 15. It then denied Clark leave to amend because she filed her motion to amend after the magistrate recommended a disposition of her § 2255 motion. The district court reasoned that a litigant may not raise new arguments in objection to a magistrate judge's recommendation and that Clark cannot circumvent that rule by framing her new arguments as amendments. Moreover, the district court denied Clark's motion to amend because her proposed additional claims would have been futile. The district court reasoned that her challenges to the sentencing enhancements were considered and rejected by this court on direct appeal. See Clark, No. 08-5720, at *6 (6th Cir. July 28, 2009) (order) (holding that " the district court did not err by applying a four-level enhancement pursuant to ...