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Penney v. United States

United States Court of Appeals, Sixth Circuit

September 1, 2017

Terry Eugene Penney, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee

         Appeal 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.

         ON BRIEF:

          William Norman, Cleveland, Ohio, for Appellant.

          Steven S. Neff, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.

          Before: COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges.

          OPINION

          COLE, CHIEF JUDGE.

         Terry 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.

         I. BACKGROUND

         In 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 Cir. 2009).

         In 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.

         While 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 certiorari.

         In 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 motion.

         The 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.

         Penney 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 ...


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