UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-7135

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAJOR RAY BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III,

Chief District Judge. (5:12-cr-00143-D-1; 5:13-cv-00801-D)

Submitted: December 19, 2014 Decided: January 13, 2015

Before KEENAN, DIAZ, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Major Ray Brown, Appellant Pro Se. Shailika S. Kotiya, Tobin 

Webb Lathan, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Major Ray Brown seeks to appeal the district court’s 

order denying relief on his 28 U.S.C. § 2255 (2012) motion and 

failing to consider a new claim raised in his supplemental 

pleading. The order is not appealable unless a circuit justice 

or judge issues a certificate of appealability. 28 U.S.C. 

§ 2253(c)(1)(B) (2012). A certificate of appealability will not 

issue absent “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the 

district court denies relief on the merits, a prisoner satisfies 

this standard by demonstrating that reasonable jurists would 

find that the district court’s assessment of the constitutional 

claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 

484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 

(2003). When the district court denies relief on procedural 

grounds, the prisoner must demonstrate both that the dispositive 

procedural ruling is debatable, and that the motion states a 

debatable claim of the denial of a constitutional right. Slack, 

529 U.S. at 484-85. 

Brown complains that the district court failed to 

address the claim of actual innocence raised in his supplemental 

pleading. Brown did not style the supplemental pleading as a 

motion to amend, nor did the pleading seek leave of the court to 
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amend. We find that any error by the district court in failing 

to construe the document as a motion to amend was harmless.

Because the Rules Governing Section 2255 Proceedings 

provide no procedure for amending a § 2255 motion, we apply Rule 

15 of the Federal Rules of Civil Procedure in assessing a 

movant’s effort to amend. See Rule 12, Rules Governing Section 

2255 Proceedings (providing district courts may apply Federal 

Rules of Civil Procedure); see also United States v. Pittman, 

209 F.3d 314, 316-17 (4th Cir. 2000) (applying former Rule 15 to 

§ 2255 proceeding). “A party may amend its pleading once as a 

matter of course within . . . 21 days after service of a 

responsive pleading or . . . a motion under [Fed. R. Civ. P.]

12(b).” Fed. R. Civ. P. 15(a)(1)(B). After this time expires, 

“a party may amend its pleading only with the opposing party’s 

written consent or the court’s leave,” which should be given 

freely “when justice so requires.” Fed. R. Civ. P. 15(a)(2). 

However, leave to amend may be denied when the amendment would 

be futile, such as when the proposed claim would be time-barred. 

Pittman, 209 F.3d at 317. 

Brown’s new claim was filed more than one year after 

his conviction became final. See United States v. Sanders, 247 

F.3d 139, 142 (4th Cir. 2001) (holding judgment becomes final 

upon entry of judgment of conviction when no appeal is taken); 

cf. Clay v. United States, 537 U.S. 522, 532 (2003) (“[F]or 
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federal criminal defendants who do not file a petition for 

certiorari with this Court on direct review, § 2255’s one-year 

limitation period starts to run when the time for seeking such 

review expires.”). Because the actual innocence claim does not 

arise from the “conduct, transaction, or occurrence” in the 

original pleading, it does not relate back to the date of the 

original pleading. Fed. R. Civ. P. 15(c)(1)(B); Pittman, 209 

F.3d at 318 (holding new claim must be of same “time and type” 

as original claims). Accordingly, any error by the district 

court in failing to interpret Brown’s supplemental pleading as a 

motion to amend was harmless, as a motion would have been denied 

under Rule 15(c).

Brown next contends that he was entitled to an 

evidentiary hearing on his claims of ineffective assistance of 

counsel. Brown bears the burden of showing that (1) counsel’s 

performance was constitutionally deficient and (2) the deficient 

performance was prejudicial. Strickland v. Washington, 466 U.S. 

668, 687-88, 691-92 (1984). To satisfy the first Strickland

prong, Brown must demonstrate that counsel’s performance fell 

below an objective standard of reasonableness under “prevailing 

professional norms.” Id. at 688. To establish prejudice in the 

context of a guilty plea, Brown must demonstrate “a reasonable 

probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Hill 
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v. Lockhart, 474 U.S. 52, 59 (1985). Moreover, Brown “must 

convince the court that such a decision would have been rational 

under the circumstances.” United States v. Fugit, 703 F.3d 248, 

260 (4th Cir. 2012). 

Accepting as true Brown’s claim that counsel advised 

him that he would be held accountable at sentencing for only 1.9 

grams of crack cocaine, Brown cannot establish that, absent 

counsel’s representations, he would have chosen to proceed to 

trial. At the Fed. R. Crim. P. 11 hearing, the district court 

advised Brown that his drug conviction carried a maximum 

possible penalty of twenty years’ imprisonment; that any 

estimate of Brown’s sentence by defense counsel was not binding 

on the court; and that Brown would be unable to withdraw his 

guilty plea even if the court imposed the maximum sentence. 

Brown, testifying under oath, acknowledged his understanding of 

the court’s admonitions, denied that anyone had made any 

promises to him regarding his sentence, and proceeded to enter 

his plea of guilty. Absent compelling evidence to the contrary, 

“the truth of sworn statements made during a Rule 11 colloquy is

conclusively established.” United States v. Lemaster, 403 F.3d 

216, 221-22 (4th Cir. 2005). 

As reasonable jurists would not find that the district 

court’s assessment of the constitutional claims is debatable or 

wrong, we deny a certificate of appealability and dismiss the 
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appeal. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process.

DISMISSED