United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
Lamont Pressey, a federal inmate proceeding pro se,
submitted a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. Pressey asserted that, in
light of the Supreme Court's recent decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), his
enhanced sentence under the United States Sentencing
Guidelines ("USSG") as a career offender was
unconstitutional. By Memorandum Opinion and Order entered on
June 13, 2017, the Court granted the Government's Motion
to Dismiss and denied the § 2255 motion because
"the Supreme Court concluded that the Guidelines are not
subject to a vagueness challenge under the Due Process
Clause. . . . Johnson's vagueness holding does not apply
to the residual clause in [USSG] § 4B1.2(a)(2)."
United States v. Lee, 855 F.3d 244, 246-47 (4th Cir.
2017) (citation omitted).
29, 2017, the Court received a "MOTION TO AMEND
MOVANT'S § 2255 MOTION." ("Motion to
Amend, " ECF No. 36.) In that Motion, Pressey seeks to
add a new claim brought pursuant to United States v.
Mathis, 136 U.S. 2243 (2016). (Id. at 1.) By
Memorandum Order entered on August 24, 2017, the Court
directed the Government to file a response to the Motion to
Amend. The Government filed an Objection. (ECF No. 38.)
Pressey filed a Reply. (ECF No. 41.) As discussed below,
Pressey's Motion to Amend must be dismissed as a
successive, unauthorized § 2255 motion.
Antiterrorism and Effective Death Penalty Act of 1996
restricted the jurisdiction of the district courts to hear
second or successive applications for federal habeas corpus
relief by prisoners attacking the validity of their
convictions and sentences by establishing a
"'gatekeeping' mechanism." Felker v.
Turpin, 518 U.S. 651, 657 (1996) . Specifically,
“[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application." 28 U.S.C. § 2244(b) (3) (A) .
United States Court of Appeals for the Fourth Circuit has
instructed that inmates may not avoid the bar on successive
collateral attacks on their convictions and sentences by
inventive labeling. See United States v. Winestock,
34 0 F.3d 200, 206 (4th Cir. 2003). A motion pursuant to 28
U.S.C. § 2255 "provides the primary means of
collateral attack on a federal sentence." Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting
Cox v. Warden, Fed. Pet. Ctr., 911 F.2d 1111, 1113
(5th Cir. 1990)). "Call it a motion for a new trial,
arrest of judgment, mandamus, prohibition, coram nobis, coram
vobis, audita querela, certiorari, capias, habeas corpus,
ejectment, quare impedit ... or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is
substance that controls." Melton v. United
States, 359 F.3d 855, 857 (7th Cir. 2004) (citation
omitted). "Any motion filed in the district court that
imposed the sentence, and substantively within the scope of
§ 2255 [(a)], is a motion under § 2255, no matter
what title the prisoner plasters on the cover."
Id. (citing Ramunno v. United States, 264
F.3d 723 (7th Cir. 2001)).
Pressey seeks to bring an entirely different claim than the
Johnson claim he raised in his initial § 2255
motion. Pressey now attempts to argue that "his
designation as a career offender was in error based on
Mathis because the state offense that was used to
support" the finding that he was a career offender
"is a divisible statute." (Mot. Amend 3 (citation
omitted).) The Government argues that Pressey's Motion to
Amend, is at best, a successive § 2255 motion. (Obj. 3.)
Pressey's claim clearly seeks to vindicate a claim for
relief from his criminal judgment and sentence. Thus, no
matter its title, Pressey's Motion to Amend is an
unauthorized, successive § 2255 motion. See Gonzalez
v. Crosby, 545 U.S. 524, 530-32 (2005) (construing a
motion as a successive "habeas corpus application"
if it "seeks vindication" of "a claim"
for relief from the criminal judgment, regardless of the
title of the motion); United States v. Graham, 81
Fed.Appx. 472, 472 (4th Cir. 2003) (construing motion to
amend under Federal Rule of Civil Procedure 15 as a
successive § 2255 motion); see also Williams v.
United States, Nos. 1:09CR414, 1:14CV364, 1:14CV60, 2015
WL 965842, at *2-3 & n.2 (E.D. Va. Mar. 4, 2015)
(construing a Rule 59(e) motion and Rule 15 motion to amend
as successive, unauthorized § 2255 motions); United
States v. Loney, No. 3:02CR290, 2013 WL 6729274, at *2
(E.D. Va. Dec. 19, 2013) (construing Rule 15(d) motion as a
successive application). But see Clark v. United
States, 764 F.3d 653, 657-61 (6th Cir. 2014) (concluding
motion to amend not successive when it is filed "before
a petitioner has . . . exhausted her appellate remedies,
" id. at 658, but requiring petitioner to
"meet the requirements for reopening a case established
by Rule 59 or 60, " before permitting amendment,
id. at 661) . The Court has not received
authorization from the Fourth Circuit to hear Pressey's
successive § 2255 motion. Accordingly, the Motion to
Amend (ECF No. 36) will be dismissed for want of
the Court were to determine that the Motion to Amend was not
a successive, unauthorized § 2255 motion, the Court
would deny the motion as futile. "[L]eave to amend a
pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be
futile." Laber v. Harvey, 438 F.3d 404, 426
(4th Cir. 2006) (citations omitted). Moreover, "the
district court may not grant [a] post-judgment motion [to
amend] unless the judgment is vacated pursuant to Rule 59(e)
or Fed.R.Civ.P. 60(b)." Id. at 427 (citations
omitted); cf. Clark, 764 F.3d at 661 (requiring
inmate to satisfy grounds of Rule 59(e) or 60(b) before
amendment is allowed). Notably, Pressey did not file a
Federal Rule of Civil Procedure 59(e) motion seeking to alter
or amend the Court's June 13, 2017 Memorandum Opinion and
Order denying his § 2255 Motion and the Court has not
vacated its judgment. Nor can Pressey's Motion to Amend
be construed as a Rule 59(e) Motion. As discussed below,
Pressey's Motion to Amend simply attempts to add a new
claim based upon a new legal theory. Pressey fails to argue
any of the grounds for granting relief pursuant to Rule
59(e); he simply seeks to add a new claim after learning that
the Johnson claim raised in his original § 2255
Motion lacked merit.
permitting any amendment would be entirely futile because
Pressey's claim lacks merit. Johnson focused on
the residual clause of the ACCA, whereas Mathis
pertained to the enumerated offenses listed in that statute.
136 S.Ct. 2249. As the Government correctly asserts, in
Mathis, the Supreme Court reaffirmed the approach by
which courts should determine if a prior conviction is one of
the enumerated violent felonies set forth in 18 U.S.C. §
924 (e) (2) (B) (ii) for purposes of the ACCA. Id.
Pressey, however, was not sentenced under the ACCA.
Therefore, even if Pressey's Motion to Amend is not a
successive, unauthorized § 2255 motion, Mathis
simply does not apply to Pressey's conviction and
sentence as a career offender under the United States
Sentencing Guidelines. See Haley v. United States,
No. 2:12CR149, 2017 WL 2297022, at *4 (E.D. Va. May 24,
2017). Thus any amendment by Pressey would be futile.
appeal may not be taken from the final order in a § 2255
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(B). A COA will not issue unless a prisoner makes a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This requirement is
satisfied only when "reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)). Pressey fails to satisfy
this standard. Accordingly, a certificate of appealability
will be denied.
Clerk is directed to send a copy of this Memorandum Opinion
to Pressey and counsel of record.
 The Fourth Circuit recognizes three
grounds for relief under Rule 59(e): Ml) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear
error of law or prevent manifest injustice."
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993) (citing Weyerhaeuser Corp. v. Koppers Co., 771
F.Supp. 1406, 1419 (D. Md. 1991); Atkins v. Marathon
LeTourneau Co.,130 F.R.D. 625, 626 (S.D.Miss. 1990)).
Pressey fails to satisfy any of these grounds in ...