Harlie v. United States of America

Filing 9

ORDER denying 8 Motion for Reconsideration re 1 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by Chief Judge J. Randal Hall on 08/08/2017. (thb)

IN THE

UNITED

STATES

DISTRICT

SOUTHERN DISTRICT
STATESBORO

CHRYSTAL HARLIE,

OF

COURT

FOR THE

GEORGIA

DIVISION

*
•

Petitioner,

*
*

CV

v.

*

(Formerly CR 614-020)

616-104

•

UNITED STATES OF AMERICA,

*

Respondent

*

ORDER

On July 28,

2016,

Petitioner Chrystal Harlie filed a

motion to vacate, set aside, or correct her sentence under 28

U.S.C.

§ 2255.

The United States Magistrate Judge issued a

Report and Recommendation on November 3, 2016, recommending
dismissal of the § 2255 petition as untimely; it was filed 625

days too late.

Thus, her claims of ineffective assistance of

counsel and miscalculation of her guideline range were not

addressed.
Amendment 794,

The

Magistrate

Judge

also

determined

that

a clarifying amendment to the United States

Sentencing Guidelines, offered no relief to her because it was
not a retroactive new rule of law.

Finally,

the Magistrate

Judge recommended denying the issuance of a Certificate of
Appealability.

Harlie did not object to the Report and Recommendation,

and it was adopted by this Court in its entirety on November
21,

2016.

The Court notes,

however,

that Harlie had filed a

motion for permission to supplement her § 2255 motion and to
extend the time to object to Report and Recommendation three

days prior to entry of the Adoption Order.

Also,

she filed

objections to the Report and Recommendation on the same day
that the Adoption Order was entered.
On

June

5,

2017,

six

months

after

she

received

the

Adoption Order dismissing this case,1 Harlie filed the instant
motion

for

reconsideration.

She

reiterates

her

claim

of

ineffective assistance of counsel and continues to argue that
she is entitled to relief under Amendment 794, which sets out

new guidelines for the determination of whether a defendant
should be granted a mitigating role reduction under U.S.S.G.
§

3B1.2.

The Court may grant a party relief from a final judgment
under Rule 60(b) for "(1) mistake, inadvertence, surprise, or

excusable neglect . . . or (6) any other reason that justifies
relief."

Fed. R. Civ. P. 60(b).

Here, Harlie contends that

her failure to timely file her § 2255 petition is excusable
because

1

her

trial

counsel

was

ineffective

for

failing

to

The Adoption Order was returned to this Court as

undeliverable because of an incorrect post office address.

December 6,

2016,

On

the Clerk resent the Adoption Order to

Harlie at her present place of incarceration in West Virginia.
Thus, the Court believes that Harlie did not receive the
Adoption Order until early January 2017.

advise her about post-conviction matters,

year statute of

limitations.

It

including the one-

is well-settled,

however,

that ineffective assistance of counsel cannot be used as cause

to

excuse

procedural

default

because

no

stage.

Golston v. Attorney Gen,

908,

911

constitutional

in a

(11th

attributable

Cir.

to

right

1991) .

trial

to

post-conviction

context

counsel

at

of Sate of Ala.,

Thus,

counsel

exists

did

any
not

lack

947 F.2d

of

violate

this

notice
Harlie's

constitutional right to counsel and therefore is not "cause"

to

excuse

Further,

her

untimely

because

Harlie

filing
offers

of

the

§

2255

nothing more

to

petition.
excuse

her

untimely filing, the dismissal of the § 2255 petition remains
proper.

Addressing Harlie's

petition,

claim under Amendment

in her

and in this present motion,

the

Court reiterates that Amendment 794 offers her no relief.

The

Court

her objections,

794

thoroughly explained its reasoning

January 9,
sentence

(S.D.

its

Order of

2017, when it denied Harlie's motion to reduce

under

criminal case.

34

in

Ga.

Finally,

18

U.S.C.

§

3582(c)(2)

in

(See United States v. Harlie,

Jan.

her

underlying

CR 614-020, Doc.

9, 2017).)

Harlie

also

complains

in

her

motion

for

reconsideration that this Court did not rule on the propriety

of issuing a Certificate of Appealability in its Adoption

Order of

November

21,

2 016.

In point

of

fact,

the

Court

denied the issuance of a Certificate of Appealability when it
adopted the Report and Recommendation in its entirety since

the

Magistrate

Appealability.

Judge

recommended denying

a

Certificate

of

Lest there be any confusion, however, Harlie

has failed to make a substantial showing of the denial of a

constitutional right; therefore,

this Court will not issue a

Certificate of Appealability. See 28 U.S.C. § 2253(c) (1) (B) .
Upon the foregoing, Harlie's motion for reconsideration
(doc.

8) is hereby DENIED.

ORDER ENTERED at Augusta, Georgia, this
August,

&

day of

2017.

HONORABLE

J.

RANDAL

HALL

UNITED/STATES DISTRICT JUDGE
lERN DISTRICT OF GEORGIA