Terry Eugene PENNEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee
No. 16-5089
United States Court of Appeals, Sixth Circuit.
Decided and Filed: September 1, 2017
870 F.3d 459
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.
COLE, Chief Judge.
Terry Penney appeals the district court‘s denial of his motion under
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
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, 569 U.S. 383, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (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.
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
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
II. ANALYSIS
We review both the denial of a motion to amend a
We analyze under
This circuit has not been consistent in addressing whether the
A. The miscarriage of justice exception applies to untimely Rule 60(b) motions and motions to amend.
In McQuiggin, the Supreme Court held that, when faced with a proper showing of actual-innocence, a court cannot consider a petition‘s untimeliness as “an absolute barrier to relief.” 133 S.Ct. at 1928. Instead, under the miscarriage of justice exception, a prisoner whose claim may otherwise be barred by various federal or state procedural rules “may have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence.” Id. at 1931 (quoting Herrera v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). However, the “timing of the [petition] is a factor bearing on the reliability of the evidence purporting to show actual innocence.” Id. at 1928 (internal quotation marks omitted) (alteration in original).
To establish actual innocence, a petitioner must demonstrate that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks and citations omitted). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Id. at 623-24, 118 S.Ct. 1604 (internal quotation marks and citations omitted).
We must decide whether a proper showing of actual innocence would allow the district court to consider the merits of Penney‘s claims despite his untimely Rule 60(b)(1) motion and untimely motion to
The Supreme Court in McQuiggin emphasized that the miscarriage-of-justice exception is rooted in “the equitable discretion of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” 133 S.Ct. at 1931 (citing Herrera, 506 U.S. at 404, 113 S.Ct. 853). The Court has applied the miscarriage-of-justice exception to various procedural defaults including “‘successive’ petitions asserting previously rejected claims, ‘abusive’ petitions asserting in a second petition claims that could have been raised in a first petition, failure to develop facts in state court, and failure to observe state procedural rules, including filing deadlines.” Id. at 1931-32 (internal citations omitted). In McQuiggin, the Court held that the exception could overcome the filing deadline of the
Accordingly, an actual-innocence claim may be considered on the merits even though it would otherwise be barred by an untimely Rule 60(b) motion and an untimely motion to amend a
B. Penney failed to make the required showing of actual innocence.
Concluding that a proper showing of actual innocence could allow the district court to consider the merits of Penney‘s claims, we turn next to whether Penney has made the requisite showing, despite Penney‘s failure to raise before us the arguments he presented to the district court. We have required a petitioner arguing actual innocence to produce a Supreme Court or Sixth Circuit precedent that establishes that “he now stands convicted of a crime that the law does not deem criminal.” Phillips v. United States, 734 F.3d 573, 582-83 (6th Cir. 2013). Penney has failed to meet this threshold burden. See id.
Penney cites United States v. Dale, 178 F.3d 429, 431-32 (6th Cir. 1999), for the proposition that because a single conspiracy may have as its objective an intent to distribute multiple types of drugs, charging each drug as a separate conspiracy must be multiplicitous. Dale does not stand for this proposition; it merely accepts charging the defendant with a single conspiracy to distribute both drugs and is silent as to the constitutionality of charging each drug as its own conspiracy. See Dale, 178 F.3d at 431-34. No circuit has found that charging simultaneous possession of two drugs as two crimes violates the Double Jeopardy Clause. See United States v. Lockett, 859 F.3d 425, 428 (7th Cir. 2017) (collecting cases).
Penney also cites Costo v. United States, 904 F.2d 344, 348 (6th Cir. 1990), for the proposition that his convictions for possessing with intent to distribute cocaine (counts ten and twelve) and for possessing with intent to distribute marijuana (count eleven) are multiplicitous. However, Costo dealt with the government charging for both distribution and attempted distribution of cocaine—the attempt and the completed offense. Id. That is not the case here. Nor are we aware of any case that would establish that the counts are necessarily multiplicitous.
Furthermore, Penney cites no support for his argument that he was actually innocent under
A person who, in furtherance or to escape detection of a major drug offense and with the intent to intimidate, harass,
injure, or maim, fires a weapon into a group of two or more persons and who, in the course of such conduct, causes grave risk to any human life shall be punished by a term of no more than 25 years, by fine under this title, or both.
Penney argues that (1) the evidence established that the officers were not standing in a group when he fired the shots and (2) if his lawyer had not been ineffective, the lawyer would have convinced the court that the legislative history of the statute indicated that it applied only to drive-by shootings. The first argument lacks support. Multiple officers testified that they were standing with the entry team—that included Agent Gillette—when Penney shot her. The second argument is speculative and does not meet the high burden that we impose on litigants attempting to demonstrate actual innocence. See Phillips, 734 F.3d at 582-83.
Although Penney failed to raise his actual innocence arguments before this court, we have thoroughly reviewed the record, and, in viewing the totality of the evidence, we conclude that Penney has not met his burden of showing that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” See Bousley, 523 U.S. at 623, 118 S.Ct. 1604. Accordingly, the district court did not abuse its discretion in denying Penney‘s Rule 60(b) motion.
III. CONCLUSION
For the foregoing reasons, we affirm the district court‘s denial of Penney‘s