                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 17a0204p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 TERRY EUGENE PENNEY,                                     ┐
                                  Petitioner-Appellant,   │
                                                          │
                                                           >      No. 16-5089
        v.                                                │
                                                          │
                                                          │
 UNITED STATES OF AMERICA,                                │
                                  Respondent-Appellee     │
                                                          ┘

                            Appeal from the United States District Court
                       for the Eastern District of Tennessee of Chattanooga.
              Nos. 1:04-cr-00036-1; 1:11-cv-00035—Curtis L. Collier, District Judge.

                              Decided and Filed: September 1, 2017

             Before: COLE, Chief Judge; BATCHELDER and MOORE, Circuit Judges.
                                     _________________

                                           COUNSEL

ON BRIEF: William Norman, Cleveland, Ohio, for Appellant. Steven S. Neff, UNITED
STATES ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.
                                       _________________

                                            OPINION
                                       _________________

       COLE, Chief Judge. Terry Penney appeals the district court’s denial of his motion under
Federal Rule of Civil Procedure 60(b) for relief from the district court’s denial of his motion to
amend his 28 U.S.C. § 2255 motion to vacate his sentence. Penney argues that the district court
erred in denying his motion to amend as untimely without first considering the merits of his
actual-innocence claim. We affirm.
 No. 16-5089                         Penney v. United States                              Page 2


                                      I. BACKGROUND

        In 2005, a jury convicted Penney of fifteen drug and firearm offenses and an attempt to
kill a federal agent. The convictions arose from a police operation to arrest Penney during a sale
of approximately 200 pounds of marijuana. During the execution of a police warrant, Penney
fired two gunshots, one injuring federal agent Paris Gillette and the other injuring Detective
Marty Dunn. The district court sentenced Penney to 895 months’ imprisonment. We affirmed.
United States v. Penney, 576 F.3d 297 (6th Cir. 2009).

        In February 2011, Penney’s counsel filed a § 2255 motion, asserting numerous grounds
for relief. In August 2013, Penney moved pro se to amend the motion with nine more grounds
for relief. The district court denied the § 2255 motion as meritless and, in accordance with a
local rule, denied Penney’s motion to amend because he was represented by counsel and no order
of substitution had been entered. Penney filed a notice of appeal to contest the denial of both
motions.

        While Penney’s appeal was pending, he filed a motion to alter or amend the district
court’s judgment on the ground that the district court’s denial of his motion to amend created a
“manifest miscarriage of justice” because, in light of McQuiggin v. Perkins, 133 S. Ct. 1924
(2013), “valid claims of actual innocence and unauthorized detention [could] trump time and
procedural bars.” (Motion to Alter or Amend, R. 431, PageID 1142.) The district court denied
the motion. Penney’s pending appeal ended when this court denied Penney’s application for a
certificate of appealability (“COA”), and the Supreme Court denied Penney’s petition for a writ
of certiorari.

        In February 2015, Penney’s counsel filed a motion for relief from judgment under
Federal Rules of Civil Procedure 60(b)(1) and (6), arguing that the district court erred when it
denied Penney’s motion to amend because (1) the court mistakenly concluded that it lacked
discretion to consider Penney’s proposed pro se claims; (2) McQuiggin required the court to
consider the merits of Penney’s actual-innocence claims before rejecting them on the procedural
ground that they were untimely; and (3) the district court erroneously concluded that several of
Penney’s proposed pro se claims did not relate back to counsel’s timely § 2255 motion.
 No. 16-5089                          Penney v. United States                              Page 3


        The district court denied the motion, concluding that both the district court and this court
had already rejected Penney’s first and third arguments. However, the district court did not
address whether McQuiggin required it to consider the merits of Penney’s proposed actual-
innocence claims before rejecting them on procedural grounds.           Rather, the district court
concluded that Penney’s Rule 60(b)(1) request was untimely because he filed it more than one
year after the denial of his motion to amend his § 2255 motion, and that he was not entitled to
relief under Rule 60(b)(6) because he failed to identify any exceptional circumstances that would
entitle him to relief.

        Penney filed a timely notice of appeal. We denied a COA as to Penney’s argument that
his Rule 60(b) motion was timely but granted a COA to determine “whether the district court
erred when it denied Penney’s motion to reopen the judgment denying his request to amend his
§ 2255 motion without first considering the merits of Penney’s proposed actual-innocence
claims.” (COA, R. 463, PageID 2811.) In other words, the scope of this appeal is limited to
whether a proper showing of actual innocence may allow the district court to consider the merits
of those claims despite his untimely Rule 60(b) motion and motion to amend.

                                         II. ANALYSIS

        We review both the denial of a motion to amend a § 2255 motion and the denial of a Rule
60(b) motion for abuse of discretion. Franklin v. Jenkins, 839 F.3d 465, 472 (6th Cir. 2016);
Clark v. United States, 764 F.3d 653, 661 (6th Cir. 2014). “An abuse of discretion occurs when
a district court ‘commits a clear error of judgment, such as applying the incorrect legal standard,
misapplying the correct legal standard, or relying upon clearly erroneous findings of fact.’” King
v. Harwood, 852 F.3d 568, 579 (6th Cir. 2017) (quoting Info-Hold, Inc. v. Sound Merch., Inc.,
538 F.3d 448, 454 (6th Cir. 2008)). We will only find an abuse of discretion “when our review
leaves us with a definite and firm conviction that the trial court committed a clear error of
judgment.” Franklin, 839 F.3d at 472 (internal quotation marks and citations omitted).

        We analyze under Rule 60(b)(1) rather than Rule 60(b)(6) Penney’s motion for relief from
the district court’s denial of his motion to amend. First, Penney argues that he seeks relief from
substantive mistakes of law made by the district court. We have held that “a Rule 60(b)(1) motion is
 No. 16-5089                             Penney v. United States                                  Page 4


intended to provide relief . . . when the judge has made a substantive mistake of law or fact in the
final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th Cir. 2002). Further, we have
concluded that Rule 60(b)(6) should be used only in “exceptional or extraordinary circumstances
which are not addressed by the first five numbered clauses of the Rule.” Moreland v. Robinson,
813 F.3d 315, 327 (6th Cir. 2016). Because Penney’s arguments are of a type for which Rule
60(b)(1) is intended to provide relief, we consider his motion only under that section.

        This circuit has not been consistent in addressing whether the Rule 60(b)(1) time limit is a
jurisdictional bar or merely a claim-processing rule. See Willis v. Jones, 329 F. App’x 7, 14 (6th Cir.
2009) (“[T]his Rule 60(b) time limit is an affirmative defense, not a jurisdictional bar.”); Mitchell v.
Rees, 261 F. App’x 825, 830 (6th Cir. 2008) (holding that the Rule 60(b) time limit is jurisdictional).
If it were a jurisdictional bar, Penney’s appeal would end here. But we hold that this time limit is not
a jurisdictional rule. Federal Rule of Civil Procedure 82 says that the Federal Rules “do not extend or
limit the jurisdiction of the district courts.” The Supreme Court has made it clear that Court-
prescribed rules governing practice and procedure in the federal courts, which include the Federal
Rules of Civil Procedure, “do not create or withdraw federal jurisdiction.” Owen Equip. & Erection
Co. v. Kroger, 437 U.S. 365, 370 (1978) (citing Snyder v. Harris, 394 U.S. 332 (1969)). More
recently, in a case involving the Court-created Federal Rules of Bankruptcy Procedure, the Supreme
Court—citing Owen Equipment—explained that a rule setting a similar time limit was not
jurisdictional. See Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004) (noting these rules are claim-
processing rules and that courts, including the Supreme Court, have “more than occasionally used the
term ‘jurisdictional’ to describe emphatic time prescriptions in rules of court,” and that claim-
processing rules are not properly labeled jurisdictional). Rather, the Court specified, the term
“jurisdictional” should be used for “delineating the classes of cases (subject-matter jurisdiction) and
the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Id. at 455. Rule
60(b)’s timing rule falls into neither category. Accordingly, that time limit is not a jurisdictional rule;
it is a claim-processing rule.

        A. The miscarriage of justice exception applies to untimely Rule 60(b) motions and
           motions to amend.

        In McQuiggin, the Supreme Court held that, when faced with a proper showing of actual-
innocence, a court cannot consider a petition’s untimeliness as “an absolute barrier to relief.”
 No. 16-5089                           Penney v. United States                              Page 5


133 S. Ct. at 1928. Instead, under the miscarriage of justice exception, a prisoner whose claim
may otherwise be barred by various federal or state procedural rules “may have his federal
constitutional claim considered on the merits if he makes a proper showing of actual innocence.”
Id. at 1931 (quoting Herrera v. Collins, 506 U.S. 390, 404–05 (1993)). However, the “timing of
the [petition] is a factor bearing on the reliability of the evidence purporting to show actual
innocence.” Id. at 1928 (internal quotation marks omitted) (alteration in original).

       To establish actual innocence, a petitioner must demonstrate that “in light of all the
evidence, it is more likely than not that no reasonable juror would have convicted him.” Bousley
v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks and citations omitted).
“[A]ctual innocence means factual innocence, not mere legal insufficiency.” Id. at 623–24
(internal quotation marks and citations omitted).

       We must decide whether a proper showing of actual innocence would allow the district
court to consider the merits of Penney’s claims despite his untimely Rule 60(b)(1) motion and
untimely motion to amend. Both questions are matters of first impression in this court. We
answer them in the affirmative.

       The Supreme Court in McQuiggin emphasized that the miscarriage-of-justice exception is
rooted in “the equitable discretion of habeas courts to see that federal constitutional errors do not
result in the incarceration of innocent persons.” 133 S. Ct. at 1931 (citing Herrera, 506 U.S. at
404). The Court has applied the miscarriage-of-justice exception to various procedural defaults
including “‘successive’ petitions asserting previously rejected claims, ‘abusive’ petitions
asserting in a second petition claims that could have been raised in a first petition, failure to
develop facts in state court, and failure to observe state procedural rules, including filing
deadlines.” Id. at 1931–32 (internal citations omitted). In McQuiggin, the Court held that the
exception could overcome the filing deadline of the Antiterrorism and Effective Death Penalty
Act.   We see no reason why the miscarriage-of-justice exception does not apply to these
untimely motions.
 No. 16-5089                          Penney v. United States                             Page 6


       Accordingly, an actual-innocence claim may be considered on the merits even though it
would otherwise be barred by an untimely Rule 60(b) motion and an untimely motion to amend a
§ 2255 motion to be considered on the merits.

       B. Penney failed to make the required showing of actual innocence.

       Concluding that a proper showing of actual innocence could allow the district court to
consider the merits of Penney’s claims, we turn next to whether Penney has made the requisite
showing, despite Penney’s failure to raise before us the arguments he presented to the district
court. We have required a petitioner arguing actual innocence to produce a Supreme Court or
Sixth Circuit precedent that establishes that “he now stands convicted of a crime that the law
does not deem criminal.” Phillips v. United States, 734 F.3d 573, 582–83 (6th Cir. 2013).
Penney has failed to meet this threshold burden. See id.

       Penney cites United States v. Dale, 178 F.3d 429, 431–32 (6th Cir. 1999), for the
proposition that because a single conspiracy may have as its objective an intent to distribute
multiple types of drugs, charging each drug as a separate conspiracy must be multiplicitous.
Dale does not stand for this proposition; it merely accepts charging the defendant with a single
conspiracy to distribute both drugs and is silent as to the constitutionality of charging each drug
as its own conspiracy. See Dale, 178 F.3d at 431–34. No circuit has found that charging
simultaneous possession of two drugs as two crimes violates the Double Jeopardy Clause. See
United States v. Lockett, 859 F.3d 425, 428 (7th Cir. 2017) (collecting cases).

       Penney also cites Costo v. United States, 904 F.2d 344, 348 (6th Cir. 1990), for the
proposition that his convictions for possessing with intent to distribute cocaine (counts ten and
twelve) and for possessing with intent to distribute marijuana (count eleven) are multiplicitous.
However, Costo dealt with the government charging for both distribution and attempted
distribution of cocaine—the attempt and the completed offense. Id. That is not the case here.
Nor are we aware of any case that would establish that the counts are necessarily multiplicitous.
 No. 16-5089                          Penney v. United States                             Page 7


       Furthermore, Penney cites no support for his argument that he was actually innocent
under 18 U.S.C. § 36. Section 36(b)(1) reads:

       A person who, in furtherance or to escape detection of a major drug offense and
       with the intent to intimidate, harass, injure, or maim, fires a weapon into a group
       of two or more persons and who, in the course of such conduct, causes grave risk
       to any human life shall be punished by a term of no more than 25 years, by fine
       under this title, or both.

Penney argues that (1) the evidence established that the officers were not standing in a group
when he fired the shots and (2) if his lawyer had not been ineffective, the lawyer would have
convinced the court that the legislative history of the statute indicated that it applied only to
drive-by shootings. The first argument lacks support. Multiple officers testified that they were
standing with the entry team—that included Agent Gillette—when Penney shot her. The second
argument is speculative and does not meet the high burden that we impose on litigants
attempting to demonstrate actual innocence. See Phillips, 734 F.3d at 582–83.

       Although Penney failed to raise his actual innocence arguments before this court, we
have thoroughly reviewed the record, and, in viewing the totality of the evidence, we conclude
that Penney has not met his burden of showing that “in light of all the evidence, it is more likely
than not that no reasonable juror would have convicted him.” See Bousley, 523 U.S. at 623.
Accordingly, the district court did not abuse its discretion in denying Penney’s Rule 60(b)
motion.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of Penney’s Rule 60(b)
motion.
