US v. Donikki Hardy

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:01-cr-00235-HMH-1. Copies to all parties and the district court/agency. [999801202]. Mailed to: Donikki Hardy. [15-7922]

Appeal: 15-7922

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7922

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DONIKKI HARDY,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:01-cr-00235-HMH-1)

Submitted:

April 14, 2016

Decided:

April 22, 2016

Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Donikki Hardy, Appellant Pro Se. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donikki
denying

his

Hardy
Fed.

reconsideration.

appeals
R.

from

Crim.

P.

the

36

district

motion

and

court’s
his

orders

motion

for

Hardy sought to delete information from his

presentence report (“PSR”) that had been expunged by the state
court.

Because the relief he seeks is not available by way of

Rule 36, we affirm.
Rule
considers
clerical

36

provides

appropriate,
error

in

a

that
the

“[a]fter

court

judgment,

may

giving
at

order,

or

any

any

notice

time

correct

other

part

of

it
a

the

record, or correct an error in the record arising from oversight
or omission.”

The Advisory Committee Notes to Rule 36 point out

that Rule 36 is similar to Fed. R. Civ. P. 60(a), which provides
for the correction of clerical mistakes in civil orders.

The

Ninth Circuit explained the type of clerical mistakes that may
be corrected under Rule 60(a) as follows:
The basic distinction between “clerical mistakes” and
mistakes that cannot be corrected pursuant to Rule
60(a) is that the former consist of “blunders in
execution” whereas the latter consist of instances
where the court changes its mind, either because it
made a legal or factual mistake in making its original
determination, or because on second thought it has
decided to exercise its discretion in a matter
different from the way it was exercised in the
original determination.
Blanton v. Angelone, 813 F.2d 1574, 1577 n.2 (9th Cir. 1987)
(citation omitted).

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Here, the PSR was not incorrect when issued, and in fact is
not

currently

challenged

incorrect.

information

was

Hardy

does

included

by

not

submit

mistake

and

that

the

does

not

assert that it is false or that he should have been sentenced
differently.

Instead, he seeks to alter the PSR based on a

later state order that does not even purport to apply to federal
documents.

Because the relief sought by Hardy does not consist

of a “blunder in execution,” the district court cannot provide
relief under Rule 36. *
Accordingly, we affirm.

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.
AFFIRMED

*

Hardy’s conclusory allegations regarding the prejudice to
him
are
matters
which
require
factual
development
and
administrative
exhaustion
within
the
Bureau
of
Prisons.
Depending on the actual harm, his remedy may lie under 28 U.S.C.
§ 2241 (2012), or Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971).

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