ORDER DENYING MOTION, MADE UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b), TO REOPEN THE COURT'S DECISION DENYING 28 U.S.C. § 2255 RELIEF
DAVID M. EBEL, District Judge.
This case comes before the Court on Defendant Christopher Bass's motion, made under Fed. R. Civ. P. 60(b), "to reopen" the Court's decision denying 28 U.S.C. § 2255 relief from his conviction for being a felon in possession of a firearm. (Doc. 219.) For the following reasons, the Court DENIES that motion.
I. Rule 60(b) motions in 28 U.S.C. § 2255 proceedings
Where, as here, the Court has already denied a defendant's motion for 28 U.S.C. § 2255 relief, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the defendant's ability to assert second or successive claims for § 2255 relief. See 28 U.S.C. §§ 2255(h), 2244. As Mr. Bass acknowledges, a defendant cannot avoid AEDPA's limitations by asserting second or successive § 2255 claims in the guise of a Rule 60(b) motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005). Nevertheless, a defendant can still pursue a "true" Rule 60(b) motion seeking relief from the denial of § 2255 relief if he asserts "some defect in the integrity of th[at] federal habeas proceeding." Gonzalez, 545 U.S. at 532. Mr. Bass's Rule 60(b) motion, liberally construed, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), contends that his § 2255 proceeding was defective because the Court failed to address several of the claims that he included in his § 2255 motion. See Peach v. United States, 468 F.3d 1269, 1270-71 (10th Cir. 2006) (per curiam). The Court will address the merits of those claims here. However, after further consideration, the Court concludes that they do not warrant relief.1
II. Background
The claims that Mr. Bass asserts that this Court failed to address in its previous order denying § 2255 relief all concern the police discovering the firearm underlying Mr. Bass's felon-in-possession conviction in a black bag in his living room. Briefly summarized, the facts underlying that discovery are these2: Officers watched Mr. Bass's home and followed him as he drove away from his residence. After Mr. Bass committed several traffic infractions, the officers conducted a traffic stop and, finding a meth pipe in Mr. Bass's pocket, arrested him and took him to the police station. Thereafter, the officers returned to Mr. Bass's home, where they spoke with his girlfriend, Jessica Ramsey. Officers had previously seen Ms. Ramsey coming in and out of the home and she told the officers that she, too, lived at the residence with Mr. Bass. Ms. Ramsey consented to the officers searching the home and during the search told officers that Mr. Bass stored firearms in black bags, satchels or backpacks. One of the officers, Officer Alvarez, found a black leather bag in the living room and, looking inside it, discovered the revolver that formed the basis for Mr. Bass's felon-in-possession conviction.
III. Claims that Mr. Bass contends the Court failed to address in its previous order denying § 2255 relief
Mr. Bass contends that, although he included the following claims in his § 2255 motion, this Court did not expressly address these claims when the Court denied Mr. Bass § 2255 relief.3
A. Brady/Napue claim
In his claim alleging a "Prosecutorial Misconduct/Due Process Violation," which this Court characterized as a Brady/Napue claim,4 Mr. Bass argued that Officer Alvarez, who discovered the gun in the black bag found in Mr. Bass's living room, lied when he testified at the suppression hearing that he did not realize that the bag belonged to Mr. Bass before looking inside it and discovering the gun. (Doc. 198 at 5, 9-11.) In its previous decision denying Mr. Bass § 2255 relief, the Court, quoting Mr. Bass's § 2255 motion, noted that Mr. Bass's argument was "that the prosecution's knowing solicitation of, or failure to correct, perjured testimony of how evidence was recovered from [Mr. Bass's] residence violated [his] due process rights and is grounds for new trial . . . [b]ecause there is a reasonable likelihood the false testimony affected the judgment of the jury, and of the district court during the suppression hearing." (Doc. 208 at 5.) The Court rejected that argument. (Id. at 5-9.)
Mr. Bass contends that the Court, in denying him relief on this claim, failed to address Mr. Bass's allegations that the prosecution also "withheld testimony" and that Officer Alvarez "was executing an extensive scheme to defraud the Court about his knowledge or awareness as to the ownership or `privacy interest' [Mr. Bass] possessed in the black computer bag.'" (Doc. 219 at 1-2.) Even so, these allegations do not warrant § 2255 relief.5
And even if they did, the Court alternatively denied Mr. Bass § 2255 relief because Mr. Bass procedurally defaulted his Brady/Napue claim by not raising it on direct appeal. (Doc. 208 at 7.) These additional allegations do not change that result.
B. Ineffective-assistance claims
Mr. Bass asserts, in his Rule 60(b) motion, that the Court also failed to address several of his § 2255 claims alleging defense counsel was ineffective. In order to prevail on those ineffective-assistance claims, Mr. Bass had to show both that defense counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).6
1. Claim that defense counsel failed to challenge the officers' warrantless search of Mr. Bass's residence
This Court, in its previous decision denying Mr. Bass § 2255 relief, characterized his first ineffective-assistance claim as alleging that his attorneys failed to challenge "the fact that the officers conducted a search of Mr. Bass's trailer without a warrant." (Doc. 208 at 9.) The Court rejected that argument because 1) the record established that Mr. Bass's attorneys did challenge the validity of the warrantless search, and even if they had not 2) Mr. Bass would not have been prejudiced because the warrantless search was properly based on Ms. Ramsey's consent. (Doc. 208 at 10-11.) In his Rule 60(b) motion, Mr. Bass contends that this Court failed to address his argument that his attorneys were ineffective for not asserting the specific argument that, because the officers had an opportunity to obtain a warrant to search his residence, they were required to do so instead of asking Ms. Ramsey to consent to the search of the home. (Doc. 219 at 4, 11-12.)
Even if defense counsel failed to make that particular argument, it did not prejudice Mr. Bass's defense because that contention lacks merit. "The police, even if there is both time and opportunity to obtain a warrant, may conduct a legal search with no more than the consent of a proper party." United States v. Carter, 569 F.2d 801, 803 (4th Cir. 1977) (per curiam); see also Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (recognizing that a search conducted pursuant to consent is an exception to the Fourth Amendment's warrant requirement); Storey v. Taylor, 696 F.3d 987, 992 (10th Cir. 2012) (noting police can enter a home without a warrant "with the voluntary consent of the owner or a third party with apparent authority over the premises, or when exigent circumstances exist").7
2. Claim that defense counsel failed to argue that Mr. Bass's prior Missouri conviction could not support his federal felon-in-possession conviction
In previously denying Mr. Bass § 2255 relief, the Court characterized another of Mr. Bass's ineffective-assistance claims as alleging that defense counsel failed to argue "that Mr. Bass's prior felony conviction under Missouri law was not a predicate offense giving rise to liability under 18 U.S.C. § 922(g)(1) because Missouri had restored his right to own firearms." (Doc. 208 at 14.) Such an argument is premised upon 18 U.S.C. § 921(a)(2), which provides that a prior felony conviction will not provide a predicate offense for a federal felon-in-possession charge if the defendant "has had [his] civil rights restored." But § 921(a)(2) applies only if the defendant has had his rights to vote, serve on a jury, hold public office and possess firearms restored. See United States v. Baer, 235 F.3d 561, 563 (10th Cir. 2000).
In his Rule 60(b) motion, Mr. Bass contends that his argument on this point was that defense counsel failed to argue that "the ambiguities in the Missouri law . . . should be resolved in favor of [Mr. Bass] under the Rule of Lenity." (Doc. 219 at 15.) That contention, however, still does not warrant § 2255 relief because Mr. Bass was not prejudiced by counsel's failure to assert this rule-of-lenity argument. Even reading ambiguities in Missouri law in Mr. Bass's favor and, thus, assuming that Missouri has reinstated Mr. Bass's right to possess firearms, Mr. Bass does not contend that Missouri has also restored his rights to vote, hold office, and serve on a jury. His Missouri conviction, therefore, can still serve as the predicate felony conviction underlying Mr. Bass's federal felon-in-possession offense at issue here. See United States v. Flowers, 29 F.3d 530, 536 (10th Cir. 1994); see also Baer, 235 F.3d at 563; United States v. Jones, 530 F. App'x 747, 750-51 (10th Cir.) (unpublished) (addressing Missouri law restoring civil rights after convictions), cert. denied, 134 S.Ct. 548 (2013).
IV. Conclusion
The Court has considered Mr. Bass's Rule 60(b) motion for relief from the Court's earlier judgment denying him § 2255 relief, as well as his prior pleadings addressing § 2255 relief. After doing so, the Court concludes that, even liberally construing Mr. Bass's pleadings, Rule 60(b) relief is not warranted. The Court continues to be impressed by Mr. Bass's legal skills. However, under the controlling law, the Court is required to DENY Mr. Bass's Rule 60(b) motion.