                            UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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




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