United States v. Johnson, 162 F.3d 1174, 10th Cir. (1998)

162 F.
3d 1174
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
David Lynn JOHNSON, Defendant-Appellant.
No. 98-3108.
United States Court of Appeals, Tenth Circuit.

Oct. 28, 1998.
1 SEYMOUR, C.J., BRORBY and BRISCOE, JJ.
2ORDER AND JUDGMENT*
3 SEYMOUR.
4 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.
5 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.
6 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.
7 The government moved for reconsideration, offering evidence that it had

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.
8 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.
9 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.
10 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.
11 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.
12 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).
* 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
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
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

United States v. Johnson, 162 F.3d 1174, 10th Cir. (1998)

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United States v. Johnson, 162 F.3d 1174, 10th Cir. (1998)

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162 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

1 SEYMOUR, C.J., BRORBY and BRISCOE, JJ.

2ORDER AND JUDGMENT*

6 Mr. Johnson was convicted for distributing and possessing phenyl-2-propane in

7 The government moved for reconsideration, offering evidence that it had

8 A habeas petitioner is required to obtain a certificate of appealability prior to

12 Mr. Johnson has failed to make a "substantial showing of the denial of a

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