870 F.3d 459
6th Cir.2017Background
- In 2005 a jury convicted Terry Penney on multiple drug, firearm counts and an attempt to kill a federal agent; he was sentenced to 895 months and this court affirmed on direct appeal.
- Penney filed a 28 U.S.C. § 2255 motion in 2011; in 2013 he moved pro se to amend the § 2255 with additional claims, which the district court denied based on a local rule barring pro se filings while counsel remained of record.
- After McQuiggin v. Perkins, Penney argued the denial of leave to amend caused a “manifest miscarriage of justice” because actual-innocence claims can overcome procedural/time bars; district court denied his Rule 60(b) motion seeking relief from the denial.
- Penney appealed; this court granted a certificate of appealability limited to whether an actual-innocence showing can permit consideration of untimely Rule 60(b) and untimely motions to amend a § 2255.
- The Sixth Circuit held the Rule 60(b) one-year time limit is a claim-processing rule (not jurisdictional), that McQuiggin’s miscarriage-of-justice exception can apply to untimely Rule 60(b) and amendment motions, but Penney failed to make the required actual-innocence showing.
Issues
| Issue | Plaintiff's Argument (Penney) | Defendant's Argument (Gov’t / Court below) | Held |
|---|---|---|---|
| Is the Rule 60(b)(1) one-year time limit jurisdictional? | Time limit should bar late Rule 60(b) as a jurisdictional requirement. | Time limit is a claim-processing rule, not jurisdictional. | Not jurisdictional; it is a claim-processing rule. |
| Does McQuiggin’s miscarriage-of-justice/actual-innocence exception apply to untimely Rule 60(b) motions and untimely motions to amend a § 2255? | McQuiggin means actual-innocence can overcome time and procedural bars to consideration on the merits. | Procedural/time rules should still bar untimely filings. | McQuiggin’s exception applies; actual-innocence may allow merits review despite untimeliness. |
| Did Penney make the required showing of actual innocence? | New pro se claims and evidence establish it’s more likely than not no reasonable juror would convict. | Record and precedent do not support factual innocence; claims are legally and factually insufficient. | Penney failed to meet the high actual-innocence standard. |
| Appropriate procedural vehicle: Rule 60(b)(1) vs Rule 60(b)(6) | Relief warranted for substantive legal error in denying amendment; use Rule 60(b)(1). | If anything, Rule 60(b)(6) would be argued but not necessary. | Court properly analyzed under Rule 60(b)(1) because claim alleges substantive legal error. |
Key Cases Cited
- McQuiggin v. Perkins, 133 S. Ct. 1924 (2013) (miscarriage-of-justice/actual-innocence can overcome untimely habeas filing)
- Bousley v. United States, 523 U.S. 614 (1998) (actual innocence defined as factual innocence; standard: more likely than not no reasonable juror would convict)
- Kontrick v. Ryan, 540 U.S. 443 (2004) (Court rules with emphatic time prescriptions are claim-processing, not jurisdictional)
- Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365 (1978) (Federal Rules do not create or withdraw jurisdiction)
- Phillips v. United States, 734 F.3d 573 (6th Cir. 2013) (requirement that petitioner show precedent establishing he is convicted of something no longer criminal as a threshold for some actual-innocence arguments)
- United States v. Penney, 576 F.3d 297 (6th Cir. 2009) (Penney’s direct-appeal decision)