1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0225p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

DEIDRE LYNN CLARK, 

Petitioner-Appellant, 

v. 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

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No. 11-6380 

Appeal from the United States District Court 

for the Eastern District of Kentucky at London. 

Nos. 6:07-cr-13-5; 6:10-cv-7128—Danny C. Reeves, District Judge. 

Argued: June 17, 2014 

Decided and Filed: September 4, 2014 

Before: SILER, GILMAN, and GIBBONS, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Joshua I. Hammack, JONES DAY, Washington, D.C., for Appellant. Brandon L. 

Fyffe, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee. ON 

BRIEF: Jennifer L. Swize, Jennifer Bradley Lichter, JONES DAY, Washington, D.C., for 

Appellant. Charles P. Wisdom, Jr., Elisabeth A. Sigler, UNITED STATES ATTORNEY’S 

OFFICE, Lexington, Kentucky, for Appellee. 

_________________ 

OPINION

_________________ 

JULIA SMITH GIBBONS, Circuit Judge. Deidre Clark, a pro se federal prisoner, filed a 

motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence, claiming that 

the assistance of her trial and appellate counsel was ineffective and that her plea was not 

>
No. 11-6380 Clark v. United States Page 2

knowing or voluntary. The district court denied both her original § 2255 motion and her first 

motion to amend and dismissed with prejudice Clark’s application for relief under § 2255. Clark 

did not timely appeal that judgment. Rather, on October 3, 2011, Clark filed a second motion to 

amend, which was identical to her first motion to amend. The district court denied her second 

motion to amend for the same reasons underlying its denial of her first motion to amend—

namely, that Clark filed the motion after the magistrate judge recommended a disposition of her 

§ 2255 motion and, moroever, the claims Clark sought to add were futile. This court issued a 

certificate of appealability (COA) as to the denial of Clark’s second motion to amend. We now 

affirm. 

I. 

On March 29, 2007, a federal grand jury returned a second superseding indictment 

charging Clark with making a false statement to a federally licensed firearm dealer, in violation 

of 18 U.S.C. § 924(a)(1)(A), and with possession of an unregistered sawed-off shotgun, in 

violation of 26 U.S.C. § 5861(d). On September 6, 2007, Clark entered a nolo contendere plea 

to the false-statement charge and a guilty plea to the possession charge. On June 2, 2008, the 

district court sentenced Clark to a term of 108 months’ imprisonment, consisting of 60 months as 

to the false-statement charge and 108 months as to the possession charge, to be served 

concurrently. On direct appeal, this court affirmed Clark’s convictions and sentences and 

granted counsel’s motion for leave to withdraw pursuant to Anders v. California, 386 U.S. 738 

(1967). 

On July 20, 2010, Clark filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set 

aside, or correct her sentence, claiming that the assistance of trial and appellate counsel was 

ineffective and that her plea was not knowing or voluntary. On July 19, 2011, the magistrate 

judge recommended that Clark’s § 2255 motion be denied on the merits. Clark did not file 

objections to the magistrate judge’s recommendation. Instead, on August 22, 2011, she filed a 

motion to amend her § 2255 motion. In her motion, Clark claimed that “due to her severe 

depression” she was unable to file pro se a comprehensive § 2255 motion in the first instance in 

July 2011. She asked the court for leave to amend her § 2255 motion to add four new claims. 

Two of those claims alleged that the sentence imposed by the district court violated the Fifth 
No. 11-6380 Clark v. United States Page 3

Amendment because the four-level enhancement for transferring a firearm to be used in a felony 

offense and the two-level enhancement for obstruction of justice were incorrectly applied. Clark 

also sought to add claims alleging selective prosecution and judicial misconduct. 

On August 23, 2011, the district court denied Clark’s motion to amend her § 2255 

motion. First, the district court noted that requests to amend § 2255 motions are governed by 

Federal Rule of Civil Procedure 15. It then denied Clark leave to amend because she filed her 

motion to amend after the magistrate recommended a disposition of her § 2255 motion. The 

district court reasoned that a litigant may not raise new arguments in objection to a magistrate 

judge’s recommendation and that Clark cannot circumvent that rule by framing her new 

arguments as amendments. Moreover, the district court denied Clark’s motion to amend because 

her proposed additional claims would have been futile. The district court reasoned that her 

challenges to the sentencing enhancements were considered and rejected by this court on direct 

appeal. See Clark, No. 08-5720, slip op. at 3 (6th Cir. July 28, 2009) (order) (holding that “the 

district court did not err by applying a four-level enhancement pursuant to USSG § 2K2.1(b)(6)” 

and that the “two-level increase for obstruction of justice under USSG § 3C1.1” was proper). 

The district court further held that Clark’s prosecutorial and judicial-misconduct claims would 

have been barred by the statute of limitations because neither claim “related back” to the original 

motion, being based on facts other than those on which her original ineffective-assistance-ofcounsel and Fifth-Amendment claims were predicated. See Mayle v. Felix, 545 U.S. 644, 650 

(2005) (“An amended habeas petition, we hold, does not relate back (and thereby escape 

AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts that 

differ in both time and type from those the original pleading set forth.”); see also 28 U.S.C. 

§ 2244(d)(1) (one-year limitation period); Fed. R. Civ. P. 15(c)(2) (stating that pleading 

amendments relate back to the filing date of the original pleading when both the original plea and 

the amendment arise out of the same “conduct, transaction, or occurrence”). 

After denying Clark’s motion to amend, the district court construed her motion as 

containing objections to the magistrate judge’s recommended disposition of her § 2255 motion. 

The district court then denied the objections and adopted the magistrate’s recommendation. The 

district court accordingly denied Clark’s § 2255 motion to vacate and dismissed her claims with 
No. 11-6380 Clark v. United States Page 4

prejudice. The district court then dismissed the § 2255 proceeding and struck it from the court’s 

docket. 

Clark did not file a timely notice of appeal. Rather, in response to the district court’s 

judgment, she filed a second motion to amend her original § 2255 motion that was identical to 

her first motion to amend. Attached to her second motion to amend, Clark included a letter to 

the magistrate judge, alleging that because she was “not in [her] right state of mind” when she 

composed her original § 2255 motion, she did not include the claims that she sought permission 

to add. Clark’s second motion to amend was filed on October 3, 2011. The district court denied 

her motion the next day. 

This court received a letter request for a COA on October 31, 2011, and that document 

was filed as Clark’s notice of appeal. The notice of appeal was late insofar as it was taken from 

the August 23, 2011 judgment; however, this court construed that notice of appeal as a timely 

appeal taken from the October 4, 2011 denial of Clark’s second motion to amend. United States 

v. Clark, No. 11-6380 (6th Cir. Mar. 13, 2012) (order). This court remanded to the district court 

for the purpose of determining whether to grant or to deny a COA on Clark’s appeal of the denial 

of her second motion to amend her original § 2255 motion. United States v. Clark, No. 11-6380 

(6th Cir. May 21, 2012) (order). The district court denied a COA for the reasons outlined in its 

August 23, 2011 opinion and order. 

On February 8, 2012, this court granted a COA. United States v. Clark, No. 11-6380, slip 

op. at 3 (6th Cir. Feb. 8, 2013) (order granting COA). This court found that reasonable jurists 

would find it debatable whether the district court was correct in its ruling that Clark’s second 

motion to amend was procedurally barred. First, this court noted that although a post-conviction 

petitioner generally may not raise new claims or arguments in response to a magistrate judge’s 

recommendation, such claims may be raised if there are “compelling reasons.” Clark, No. 11-

6380, slip op. at 2−3 (order granting COA) (quoting Murr v. United States, 200 F.3d 895, 902 

n.1 (6th Cir. 2000)). This court found that in her second motion to amend her § 2255 motion 

Clark referred to her “severe depression” as a reason for not including the additional claims in 

her original § 2255 motion. Id. at 3. Hence, this court granted a COA on the issue of whether 

depression may amount to a compelling justification for amending a § 2255 motion after the 
No. 11-6380 Clark v. United States Page 5

magistrate judge has issued a report and recommendation. Id. Second, this court instructed the 

parties to address the applicability of Federal Rule of Civil Procedure 15(a)(2), which provides 

that a district court “should freely give leave [to amend] when justice so requires,” to the 

circumstances of Clark’s case. Id. (citing Coe v. Bell, 161 F.3d 320, 341−42 (6th Cir. 1998)). 

II. 

We begin with our jurisdiction, which we have a duty to consider and may raise sua 

sponte. Hampton v. R.J. Corman R.R. Switching Co., 683 F.3d 708, 710−11 (6th Cir. 2012); see 

also Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804) (“[I]t [is] the duty of the Court 

to see that they had jurisdiction, for the consent of the parties could not give it.”). On January 

12, 2014, this court denied the government’s motion to dismiss the appeal for lack of jurisdiction 

or, alternatively, to revoke the COA as improvidently granted. United States v. Clark, No. 11-

6380 (6th Cir. Jan. 2, 2014) (order). This court correctly pointed out that the COA, even if 

improvidently granted, vests jurisdiction in the court of appeals. See Porterfield v. Bell, 258 F.3d 

484, 485 (6th Cir. 2001). Our jurisdictional inquiry does not end there, however. 

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-

132, 110 Stat. 1214, §§ 104−06 (codified as amended in 28 U.S.C. §§ 2244, 2254−55), 

“dramatically altered the power of federal courts to issue writs of habeas corpus.” In re Bowen, 

436 F.3d 699, 701 (6th Cir. 2006). Specifically relevant here, AEDPA prohibits petitioners from 

bringing claims in a “second or successive” application for relief under §§ 2254 or 2255 that 

could have been brought in an earlier application. See 28 U.S.C. §§ 2244, 2255(h). As amended 

by AEDPA, § 2244(a) states that: 

No circuit or district judge shall be required to entertain an application for a writ 

of habeas corpus to inquire into the detention of a person pursuant to a judgment 

of a court of the United States if it appears that the legality of such detention has 

been determined by a judge or court of the United States on a prior application for 

a writ of habeas corpus, except as provided in section 2255. 

28 U.S.C. § 2244(a). Section 2244(b)(3)(A) states: 

Before 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. 
No. 11-6380 Clark v. United States Page 6

28 U.S.C. § 2244(b)(3)(A). And § 2255(h) states that a “second or successive motion” filed 

under § 2255: 

must be certified as provided in section 2244 by a panel of the appropriate court 

of appeals to contain-- 

(1) newly discovered evidence that, if proven and viewed in light 

of the evidence as a whole, would be sufficient to establish by 

clear and convincing evidence that no reasonable factfinder would 

have found the movant guilty of the offense; or 

(2) a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously 

unavailable. 

28 U.S.C. § 2255(h). Therefore, §§ 2244 and 2255(h) bar claims presented in a second or 

successive application for relief under § 2255 that were not presented in a prior application and 

that do not fall within the narrow statutory exceptions. See 28 U.S.C. §§ 2244, 2255(h).1

Because Clark’s second motion to amend was filed after the district court denied her 

original § 2255 motion, we must determine whether Clark’s second motion to amend is a 

“second or successive” § 2255 motion barred by §§ 2244(b) and 2255(h). If Clark’s motion 

were a “second or successive” § 2255 motion, then the district court should have dismissed it in 

its entirety because she failed to obtain the requisite authorization from this court. If, however, 

Clark’s motion was not a “second or successive” § 2255 motion, the claims she presented in it 

were reviewable. See Magwood v. Patterson, 561 U.S. 320, 331 (2010). 

AEDPA does not define what constitutes a “second or successive” § 2255 motion. And 

this court has yet to address when a motion to amend is a second or successive § 2255 motion 

subject to AEDPA’s requirements. See Oleson v. United States, 27 F. App’x 566, 569−71 (6th 

Cir. 2001). Other circuits, however, have explained when a motion to amend is not a second and 

 1

Indeed, the same bar applies to claims presented in a second or successive application for relief under 

§ 2254. See 28 U.S.C. § 2244(b)(2); see also Panetti v. Quarterman, 551 U.S. 930, 942 (2007) (“We first consider 

our jurisdiction. . . . Under the gatekeeping provisions of 28 U.S.C. § 2244(b)(2), ‘[a] claim presented in a second or 

successive habeas corpus application under section 2254 that was not presented in a prior application shall be 

dismissed’ except under certain, narrow circumstances.” (alteration in original) (citing 28 U.S.C. 

§§ 2244(b)(2)(A)−(B)).
No. 11-6380 Clark v. United States Page 7

successive § 2255 motion. See, e.g., Ching v. United States, 298 F.3d 174, 176−181 (2d Cir. 

2002) (Sotomayor, J.); Johnson v. United States, 196 F.3d 802, 803−806 (7th Cir. 1999). 

A motion to amend is not a second or successive § 2255 motion when it is filed before 

the adjudication of the initial § 2255 motion is complete—i.e., before the petitioner has lost on 

the merits and exhausted her appellate remedies. See Ching, 298 F.3d at 177−178; Johnson, 196 

F.3d at 805. Although this court has not recognized this specific rule, see Oleson, 27 F. App’x at 

571, it naturally flows from a more general rule illuminated by the decisions of this court and the 

Supreme Court: When a habeas petitioner files a motion attacking the merits of a conviction or 

sentence after the adjudication of her habeas petition is complete—meaning that the petitioner 

has lost on the merits and has exhausted her appellate remedies—the motion, irrespective of its 

characterization, is really a second or successive habeas petition. See Gonzalez v. Crosby, 

545 U.S. 524, 532 (2005) (holding that a Rule 60(b) motion that seeks to add a new ground for 

relief or that attacks the federal court’s previous resolution of a claim on the merits should be 

construed as successive habeas petition); In re Nailor, 487 F.3d 1018, 1022−23 (6th Cir. 2007) 

(same); United States v. Carter, 500 F.3d 486, 489−91 (6th Cir. 2007) (relying on Gonzalez’s 

holding as to Rule 60(b) motions to hold that a 18 U.S.C. § 3582 motion that otherwise attacks 

the petitioner’s underlying conviction or sentence is an attack on the merits of the case, should be 

construed as a § 2255 motion, and is therefore subject to the successive-petition bar (citing 

Gonzalez, 545 U.S. at 532)). This rule prevents the use of motions filed after the adjudication of 

a habeas petition is complete to “impermissibly circumvent the requirement that a successive 

habeas petition be precertified by the court of appeals as falling within an exception to the 

successive-petition bar.” Gonzalez, 545 U.S. at 532; see also 28 U.S.C. §§ 2244(b), 2255(h). 

Johnson v. United States and Ching v. United States developed this general rule in the context of 

motions to amend a § 2255 motion by focusing on whether the adjudication of the respective 

§ 2255 motions was complete. 

Johnson held that a motion to amend an application for § 2255 relief was not a second or 

successive collateral attack requiring appellate approval under § 2244(b) and § 2255(h) where a 

final decision had not been rendered on the original petition. 196 F.3d at 805−06. The Johnson 

court explained that “identifying second or successive motions is easy only in the paradigm 
No. 11-6380 Clark v. United States Page 8

case—the prisoner files a motion, loses on the merits, exhausts appellate remedies, and then files 

another motion.” Id. at 804. “That sequence is conclusive,” the Johnson court said, “even 

though the second motion presents grounds that could not have been raised earlier.” Id. 

Applying this principle, the Johnson court held that the amendments at issue did not constitute a 

second or successive collateral attack because the amendments were made before the district 

court made a final decision. See id. at 803−05. 

Ching similarly held “that a habeas petition submitted during the pendency of an initial 

§ 2255 motion should be construed as a motion to amend the initial motion.” 298 F.3d at 175. 

In Ching, the petitioner filed a § 2255 motion, which the district court denied as untimely. Id. 

While the appeal of the denial of that motion was pending, the petitioner filed a § 2241 petition, 

which the district court construed as a second or successive § 2255 motion and then transferred 

to the Second Circuit for certification. Id. at 176. The Ching court held that the district court 

erred in considering Ching’s § 2241 petition as a second or successive § 2255 motion because 

“the denial of the [original § 2255] motion was still pending on appeal before this Court and no 

final decision had been reached with respect to the merits of Ching’s claim.” Id. at 178. Writing 

for the court, then-Judge Sotomayor explained that “in general, when a § 2255 motion is filed 

before adjudication of an initial § 2255 is complete, the district court should construe the second 

§ 2255 motion as a motion to amend the pending § 2255.” Id. at 177. 

Although this case presents a closer question than the posture of either Johnson or Ching, 

Clark’s second motion to amend is not a second or successive application for § 2255 relief 

because the motion was filed before Clark forfeited her appellate remedies and thus before the 

adjudication of her § 2255 motion was decisively complete. Clark filed her second motion to 

amend after the district court dismissed her original § 2255 motion and her first motion to amend 

but before the period for Clark to appeal the district court’s judgment had expired. Therefore, we 

cannot say that Clark’s second motion to amend is a “paradigm case” of a second or successive 

§ 2255 motion. See Johnson, 196 F.3d at 804.2

 2

Borrowing a phrase familiar from the administrative law context, Johnson speaks of “exhaustion of state 

remedies” in the paradigm case of a “second or successive motion.” 196 F.3d at 804. But, as the Johnson court 

recognized, the rule that a petitioner cannot file a successive habeas application after losing on the merits and losing 
No. 11-6380 Clark v. United States Page 9

Furthermore, as the Ching court recognized, “[t]he general concern that civil plaintiffs 

have an opportunity for a full adjudication of their claims is particularly heightened in the 

AEDPA context, where the gatekeeping provisions of the statute stringently limit a petitioner’s 

ability to raise further issues in a subsequent action.” 298 F.3d at 177 (citing Adams v. United 

States, 155 F.3d 582, 583 (2d Cir. 1998) (discussing how AEDPA’s gate-keeping provisions 

“may result in a disastrous deprivation of a future opportunity to have a well-justified grievance 

adjudicated” if a court converts a post-conviction motion into § 2255 motion)). A plaintiff has 

not had an opportunity for the full adjudication of her claims simply because a district court has 

rendered a judgment that is “final” within the meaning of 28 U.S.C. § 1291. Id. at 178. That 

opportunity runs up until the point where the plaintiff exhausts her appellate remedies. Because 

Clark filed her second motion to amend before she had exhausted her appellate remedies, her 

second motion to amend is not a second or successive § 2255 motion and therefore is not subject 

to the successive-petition bar set forth by §§ 2244(b) and 2255(h).3

 her opportunity for an appellate remedy easily covers cases where the petitioner forfeited the opportunity for an 

appellate remedy by not timely filing a notice of appeal. 

Just as a second filing may be treated as an initial motion when the first was not eligible for 

decision on the merits, so additional filings in the first collateral attack may be treated as “second 

or successive” petitions when the first has reached a final decision. Suppose a collateral attack has 

been fully adjudicated, a final judgment has been entered, and the time for appeal has expired. 

The prisoner then files a motion under Fed. R. Civ. P. 60(b) advancing new theories of relief. 

Such a maneuver is a transparent attempt to avoid the need for prior appellate approval of a second 

collateral attack. . . . 

Id. at 805 (emphasis added). In identifying cases of second or successive habeas applications, it makes no 

difference whether the successive petition is filed as a Rule 60(b) motion or a motion to amend. See id. at 804. 

What matters is that the petitioner files a motion adding new claims after the district court denied her original 

habeas application on the merits and she has lost all opportunities for an appellate remedy. Here, at the time Clark 

filed her second motion to amend, she had not lost all opportunities for an appellate remedy.

3

We do not believe that the application of abuse-of-the-writ doctrine requires a contrary result. See, e.g., In 

re Bowling, No. 06-5937, 2007 WL 4943732, at *2 (6th Cir. Sept. 12, 2007) (applying the abuse-of-the writ doctrine 

to determine whether a particular motion is a “second or successive” habeas petition, thereby invoking the 

successive-petition bar); see generally McCleskey v. Zant, 499 U.S. 467, 489−90 (1991). In McCleskey, the 

Supreme Court provided a framework to analyze whether a petitioner has abused the writ by raising new claims in a 

second-in-time application: “[A] petitioner may abuse the writ by failing to raise a claim through inexcusable

neglect. . . . [A] petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in 

his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice.” 499 U.S. at 489. 

And to determine when the writ is abused through inexcusable neglect, the McCleskey Court added: “[A] review of 

our habeas corpus precedents leads us to decide that the same standard used to determine whether to excuse state 

procedural defaults should govern the determination of inexcusable neglect in the abuse-of-the-writ context.” Id. at 

490. Clark contends that, due to her depression, she lacked the opportunity to raise the four claims presented in her 

second motion to amend in her original § 2255 motion. This court has not squarely considered whether mental 

illness can constitute cause excusing procedural default. But see Kanios v. Baker, 961 F.2d 1577, 1992 WL 102544, 

at *1 (6th Cir. 1992) (unpublished table opinion) (holding that petitioner’s claim that “he was on medication for 

depression” did not “establish sufficient cause for failing to file a notice of appeal after his conviction.”). Thus, we 
No. 11-6380 Clark v. United States Page 10

We therefore review the district court’s denial of Clark’s second motion to amend, and 

we “may affirm for any reason presented in the record.” Loftis v. United Parcel Serv., Inc., 

342 F.3d 509, 514 (6th Cir. 2003). 

III. 

Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District 

Courts says that when special collateral-attack rules do not include a special provision for a 

circumstance, the court should be guided by the Rules of Civil and Criminal Procedure. See 

28 U.S.C. § 2255 Rule 12. Because the Rules Governing Section 2255 Proceedings for the 

United States District Courts do not deal with amendments to motions for collateral review, a 

motion to amend a § 2255 motion is generally governed by the Federal Rules of Civil Procedure. 

See Oleson, 27 F. App’x at 568; see also Ching, 298 F.3d at 177. 

“When a party seeks to amend a complaint after an adverse judgment, it thus must 

shoulder a heavier burden [than if the party sought to amend a complaint beforehand]. Instead of 

meeting only the modest requirements of Rule 15, the claimant must meet the requirements for 

reopening a case established by Rules 59 or 60.” Leisure Caviar, LLC v. U.S. Fish & Wildlife 

Serv., 616 F.3d 612, 616 (6th Cir. 2010) (citing In re Ferro Corp. Derivative Litig., 511 F.3d 

611, 624 (6th Cir. 2008); United States ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 

507 (6th Cir. 2008)). As our court has explained: 

Rule 15 requests to amend the complaint are frequently filed and, generally 

speaking, freely allowed. But when a Rule 15 motion comes after a judgment 

against the plaintiff, that is a different story. Courts in that setting must consider 

the competing interest of protecting the finality of judgments and the expeditious 

termination of litigation. If a permissive amendment policy applied after adverse 

judgments, plaintiffs could use the court as a sounding board to discover holes in 

their arguments, then reopen the case by amending their complaint to take account 

of the court’s decision. That would sidestep the narrow grounds for obtaining 

post-judgment relief under Rules 59 and 60, make the finality of judgments an 

interim concept and risk turning Rules 59 and 60 into nullities. 

 do not find that Clark’s second motion to amend constituted an abuse of the writ. Moreover, we do not decide 

jurisdiction on that basis because Clark filed her second motion to amend before her opportunity for an appellate 

remedy had expired and thus did not constitute a “second or successive” § 2255 motion. 
No. 11-6380 Clark v. United States Page 11

Leisure Caviar, 616 F.3d at 615−16 (internal citations and quotation marks omitted); see also

6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 1489 (3d ed. 2010). As a result, in post-judgments motions to amend, “‘the Rule 15 and Rule 

59 inquiries turn on the same factors.’” Leisure Caviar, 616 F.3d at 616 (quoting Morse v. 

McWhorter, 290 F.3d 795, 799 (6th Cir. 2002)). “Under Rule 59, a court may alter the judgment 

based on: ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in 

controlling law; or (4) a need to prevent manifest injustice.’” Id. at 615 (quoting Intera Corp. v. 

Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). As with Rule 15 motions, district courts have 

considerable discretion in deciding whether to grant Rule 59 motions, and this court reviews 

such decisions for abuse of discretion. Id.

In her second motion to amend, Clark made four new arguments not presented in her 

original § 2255 motion. She claimed that her sentence violated the Fifth Amendment because 

the four-level enhancement pursuant to USSG § 2K2.1(b)(6) for transferring a firearm to be used 

in a felony offense was improper. She also argued that the two-level enhancement for 

obstruction of justice was improper. As the district court correctly pointed out, this court 

rejected both arguments on direct appeal. See Clark, No. 08-5720, slip op. at 3 (holding that “the 

district court did not err by applying a four-level enhancement pursuant to USSG § 2K2.1(b)(6)” 

and that the “two-level increase for obstruction of justice under USSG § 3C1.1” was proper). 

Clark points to no intervening change in controlling law. Accordingly, Clark cannot succeed in a 

motion to alter or amend a judgment on the basis of these claims. 

Next, Clark presents a new selective-prosecution claim and a new judicial-misconduct 

claim. The gravamen of Clark’s selective-prosecution claim is that Clark was convicted and 

sentenced, while another woman, Paulette Denise Bowling, who Clark alleges was involved in 

the underlying criminal conspiracy, was not indicted. And the basis of Clark’s judicialmisconduct claim is the bare allegation that Judge Reeves “attacked Mrs. Clark’s character and 

stated several unjust, disparaging and vicious idealisms.” Neither of these claims establishes a 

basis for a successful Rule 59(e) motion. See Leisure Caviar, 616 F.3d at 615. Clark neither 

adduces newly discovered evidence nor points to any error of law or intervening change in 

controlling law. And given that Clark entered a nolo contendere plea to the false-statement 
No. 11-6380 Clark v. United States Page 12

charge and a guilty plea to the possession charge, these claims first presented in her postjudgment second motion to amend do not demonstrate that her conviction or indictment 

constituted “manifest injustice.” See id.

Because Clark cannot meet the requirements for post-judgment relief under Rule 59, she 

cannot amend her original § 2255 motion after the district court denied that motion with 

prejudice and dismissed her application for § 2255 relief. Accordingly, the district court did not 

err in denying Clark’s second motion to amend. 

IV. 

For the foregoing reasons, the district court’s denial of Clark’s second motion to amend 

her original § 2255 motion is affirmed.