* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, BRORBYand BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.1 The issues raised below were a Fifth Amendment viol ation for improper

use of defendant’s post-Miranda silence; excessive sentencing beyond the maximum time authorized by law; and ineffective ass istance 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 va cate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, alleging s everal 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 poss essing 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, follo wed by a six-year term of supervised release. We affirmed in part and remand ed for resentencing. United States v. Johnson , 12 F.3d 1540 (10th Cir. 1993). Several years aft er his resentencing, Mr. Johnson brought this 28 U.S.C. § 2255 petition alleging four issues. 1 The government filed a response and Mr. Johnson f iled his first amended petition. The district court denied relief in partbut 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 had2 The new issues were ineffective assistance of couns el during plea

negotiations, failure of the court to comply with Rule 11, and erroneous denial at sentencing of a reduction for acceptance of respons ibility. -3- properly filed the required enhancement informationpursuant 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 aft er the district court decided the case, Mr. Johnson filed a second motion to amen d his section 2255 claim, seeking to add three new contentions. 2The district court denied this motion as untimely, pointing out that petitioner could have r aised 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 recon sider the court’s first ruling and held Mr. Johnson was not entitled to resentenci ng as the court had originally determined. The court then denied Mr. Johnson’s re quest for a certificate of appealability. A habeas petitioner is required to obtain a certifi cate of appealability prior to seeking appellate review of final orders in a pr oceeding under 28 U.S.C. § 2255. A habeas petitioner is entitled to a certifi cate 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 app lication de novo.-4-

Mr. Johnson first contends that his second motion t o amend is procedural and not subject to a certificate of appealability u nder 28 U.S.C. § 2253 (c)(1)(B). Therefore, he asserts, his motion to amend should b e 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 ame nd was a violation of his constitutional right of due process and he reassert s the merits of the issues he wants to amend to include. He does not raise the i ssues he asserted in his first amended petition on which the district court deniedrelief. We are not persuaded by Mr. Johnson’s arguments. W e have clearly stated that untimeliness alone is a sufficient reason to d eny 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 se cond 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 showi ng 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