United States District Court, D. South Carolina, Florence Division
TERRY L. WOOTEN CHIEF UNITED STATES DISTRICT JUDGE.
Before the Court is Petitioner David Troy III’s motion for reconsideration of the Court’s order dismissing Petitioner’s § 2255 petition. A Rule 59(e) motion may only be granted “(1) 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. It is an extraordinary remedy that should be applied sparingly.” Mayfield v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 378 (4th Cir. 2012) (citations omitted).
Petitioner raises three grounds for relief: (1) that the Government treated him unfairly because it did not waive the statute of limitations defense in his case, even though it had done so for other defendants; (2) that the Fourth Circuit’s decision in Miller v. United States, 735 F.3d 141 (4th Cir. 2013) and the Eleventh Circuit’s decision in Spencer v. United States, 727 F.3d 1076 (11th Cir. 2013), both of which were decided months after this Court ruled on his § 2255 petition, are intervening changes in law requiring reconsideration; and (3) that he is actually innocent of the sentencing enhancement under 21 U.S.C. § 851 and the sentencing guidelines’ career offender provisions.
Regarding Petitioner’s first ground for relief, he cites multiple cases from the Middle District of North Carolina in which the Government waived a statute of limitations defense on Simmons-related petitions. However, even to the extent that these cases are factually comparable to his, the Government is not required to prosecute all of its cases in the same manner. The Government did not waive the statute of limitations in this case, and in fact, specifically asserted it as a basis for dismissal, which the Court accepted. Petitioner’s citation of other cases where the Government did waive the statute of limitations is not sufficient to compel reconsideration of the Court’s order dismissing his petition.
Regarding Petitioner’s second ground for relief, he is correct that Miller concluded that Simmons applies retroactively on collateral review. However, that does not affect the outcome of this case because his petition was still untimely. Additionally, as the Fourth Circuit has recently made clear, an erroneous application of the sentencing guidelines, including a career offender designation, is not cognizable on collateral review pursuant to § 2255. See United States v. Foote, 784 F.3d 931, 936 (4th Cir. 2015).
Petitioner also cites the Eleventh Circuit’s decision in Spencer, in which the panel concluded that § 2255 review is available for “properly preserved and timely filed career offender sentence challenges . . . where an intervening and retroactive change in the controlling Supreme Court caselaw has made the career offender status erroneous.” Spencer, 727 F.3d at 1091. However, since Petitioner filed his motion for reconsideration, the Eleventh Circuit has reviewed Spencer en banc, and the full court vacated the panel decision and reached the opposite conclusion, holding that “[w]hen a federal prisoner, sentenced below the statutory maximum, complains of a sentencing error and does not prove either actual innocence of his crime or the vacatur of a prior conviction, the prisoner cannot satisfy the demanding standard that a sentencing error resulted in a complete miscarriage of justice.” Spencer v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014) (en banc). The en banc court also explicitly held that this conclusion extends to defendants sentenced as career offenders. Id. at 1141-43. The now-vacated panel decision provides no support to Petitioner.
Regarding Petitioner’s third ground for relief, as the Court noted in its order, “actual innocence applies in the context of habitual offender provisions only where the challenge to eligibility stems from factual innocence of the predicate crimes, and not from the legal classification of the predicate crimes.” United States v. Pettiford, 612 F.3d 270, 284 (4th Cir. 2010). He makes no suggestion that he is factually innocent of the prior North Carolina drug conviction, only that its legal classification is now different after Simmons. As a change in the legal classification is not sufficient to establish actual innocence under Pettiford, he is not entitled to relief on this basis.
For the reasons stated, the Court concludes that Petitioner has not set forth sufficient grounds to cause the Court to alter or amend its prior order. Therefore, his ...