*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, or collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 28 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID LYNN JOHNSON,

Defendant-Appellant.

No. 98-3108

(D.C. No. 97-CV-3126)

(Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.
1The issues raised below were a Fifth Amendment violation for improper

use of defendant’s post-Miranda silence; excessive sentencing beyond the

maximum time authorized by law; and ineffective assistance of counsel for errors

associated with the misuse of post-Miranda silence and excessive sentencing. 

-2-

David L. Johnson brought this pro se petition to vacate, set aside, or correct

a sentence pursuant to 28 U.S.C. § 2255, alleging several constitutional errors. 

The district court denied relief, concluding that the claims were without merit,

and denied Mr. Johnson’s request for a certificate for appealability. For the

reasons that follow, we deny Mr. Johnson’s renewed application for a certificate

of appealability and dismiss the appeal. 

Mr. Johnson was convicted for distributing and possessing phenyl-2-

propane in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C), and sentenced to one

hundred sixty-two (162) months incarceration, followed by a six-year term of

supervised release. We affirmed in part and remanded for resentencing. United

States v. Johnson, 12 F.3d 1540 (10th Cir. 1993). Several years after his

resentencing, Mr. Johnson brought this 28 U.S.C. § 2255 petition alleging four

issues.1 The government filed a response and Mr. Johnson filed his first amended

petition. The district court denied relief in part but granted relief for excessive

sentencing due to the absence of evidence that the government had provided

enhancement information. 

The government moved for reconsideration, offering evidence that it had
2The new issues were ineffective assistance of counsel during plea

negotiations, failure of the court to comply with Rule 11, and erroneous denial at

sentencing of a reduction for acceptance of responsibility.

-3-

properly filed the required enhancement information pursuant to 21 U.S.C. § 851

and had delivered a copy to Mr. Johnson’s attorney. Seven months after Mr.

Johnson filed the original claim and two months after the district court decided

the case, Mr. Johnson filed a second motion to amend his section 2255 claim,

seeking to add three new contentions.2 The district court denied this motion as

untimely, pointing out that petitioner could have raised the new issues earlier and

that he offered no explanation for the delay. The court alternatively held the

amendment would be futile because petitioner would lose on the merits. The

court also granted the government’s motion to reconsider the court’s first ruling

and held Mr. Johnson was not entitled to resentencing as the court had originally

determined. The court then denied Mr. Johnson’s request for a certificate of

appealability.

A habeas petitioner is required to obtain a certificate of appealability prior

to seeking appellate review of final orders in a proceeding under 28 U.S.C. §

2255. A habeas petitioner is entitled to a certificate of appealability only if he

has made “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253 (c)(2). We review a petitioner’s application de novo.
-4-

Mr. Johnson first contends that his second motion to amend is procedural

and not subject to a certificate of appealability under 28 U.S.C. § 2253 (c)(1)(B). 

Therefore, he asserts, his motion to amend should be reviewed on the merits. We

reject this argument. Mr. Johnson’s second motion to amend is a part of his

section 2255 appeal and is thus subject to section 2253. 

In his request for a certificate of appealability, Mr. Johnson argues that the

district court’s denial of his second motion to amend was a violation of his

constitutional right of due process and he reasserts the merits of the issues he

wants to amend to include. He does not raise the issues he asserted in his first

amended petition on which the district court denied relief. 

We are not persuaded by Mr. Johnson’s arguments. We have clearly stated

that untimeliness alone is a sufficient reason to deny leave to amend. Hom v.

Squire, 81 F.3d 969, 973 (10th Cir. 1996) (citing Frank v. U. S. West, Inc.,

3 F.3d 1357, 1365 (10th Cir. 1993)). Mr. Johnson’s second motion to amend was

seven months late and two months after the court’s hearing on the merits. The

motion also offered no new facts or law that couldn’t have been included earlier. 

The district court properly denied Mr. Johnson’s second motion to amend and

certainly did not violate his constitutional rights in doing so. Consequently, the

merits of the second amended motion were not before the district court and are

not before us. 
-5-

Mr. Johnson has failed to make a “substantial showing of the denial of a

constitutional right.” Consequently, we DENY his request for a certificate of

appealability and DISMISS his appeal. See 28 U.S.C. § 2253 (c).

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge