from the United States District Court for the Eastern
District of Tennessee of Chattanooga. Nos. 1:04-cr-00036-1;
1:11-cv-00035-Curtis L. Collier, District Judge.
William Norman, Cleveland, Ohio, for Appellant.
S. Neff, UNITED STATES ATTORNEY'S OFFICE, Chattanooga,
Tennessee, for Appellee.
Before: COLE, Chief Judge; BATCHELDER and MOORE, Circuit
Penney appeals the district court's denial of his motion
under Federal Rule of Civil Procedure 60(b) for relief from
the district court's denial of his motion to amend his 28
U.S.C. § 2255 motion to vacate his sentence. Penney
argues that the district court erred in denying his motion to
amend as untimely without first considering the merits of his
actual-innocence claim. We affirm.
2005, a jury convicted Penney of fifteen drug and firearm
offenses and an attempt to kill a federal agent. The
convictions arose from a police operation to arrest Penney
during a sale of approximately 200 pounds of marijuana.
During the execution of a police warrant, Penney fired two
gunshots, one injuring federal agent Paris Gillette and the
other injuring Detective Marty Dunn. The district court
sentenced Penney to 895 months' imprisonment. We
affirmed. United States v. Penney, 576 F.3d 297 (6th
February 2011, Penney's counsel filed a § 2255
motion, asserting numerous grounds for relief. In August
2013, Penney moved pro se to amend the motion with nine more
grounds for relief. The district court denied the § 2255
motion as meritless and, in accordance with a local rule,
denied Penney's motion to amend because he was
represented by counsel and no order of substitution had been
entered. Penney filed a notice of appeal to contest the
denial of both motions.
Penney's appeal was pending, he filed a motion to alter
or amend the district court's judgment on the ground that
the district court's denial of his motion to amend
created a "manifest miscarriage of justice"
because, in light of McQuiggin v. Perkins, 133 S.Ct.
1924 (2013), "valid claims of actual innocence and
unauthorized detention [could] trump time and procedural
bars." (Motion to Alter or Amend, R. 431, PageID 1142.)
The district court denied the motion. Penney's pending
appeal ended when this court denied Penney's application
for a certificate of appealability ("COA"), and the
Supreme Court denied Penney's petition for a writ of
February 2015, Penney's counsel filed a motion for relief
from judgment under Federal Rules of Civil Procedure 60(b)(1)
and (6), arguing that the district court erred when it denied
Penney's motion to amend because (1) the court mistakenly
concluded that it lacked discretion to consider Penney's
proposed pro se claims; (2) McQuiggin required the
court to consider the merits of Penney's actual-innocence
claims before rejecting them on the procedural ground that
they were untimely; and (3) the district court erroneously
concluded that several of Penney's proposed pro se claims
did not relate back to counsel's timely § 2255
district court denied the motion, concluding that both the
district court and this court had already rejected
Penney's first and third arguments. However, the district
court did not address whether McQuiggin required it
to consider the merits of Penney's proposed
actual-innocence claims before rejecting them on procedural
grounds. Rather, the district court concluded that
Penney's Rule 60(b)(1) request was untimely because he
filed it more than one year after the denial of his motion to
amend his § 2255 motion, and that he was not entitled to
relief under Rule 60(b)(6) because he failed to identify any
exceptional circumstances that would entitle him to relief.
filed a timely notice of appeal. We denied a COA as to
Penney's argument that his Rule 60(b) motion was timely
but granted a COA to determine "whether the district
court erred when it denied Penney's motion to reopen the
judgment denying his request to amend his § 2255 motion
without first considering the merits of Penney's proposed
actual-innocence claims." (COA, R. 463, PageID 2811.) In
other words, the scope of this appeal is limited to whether a
proper showing of actual ...