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Coleman v. United States

United States District Court, S.D. Ohio, Eastern Division

May 16, 2017

ROBERT LEE COLEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 2:05-cr-0043(1)

          King Magistrate Judge

          OPINION & ORDER

          ALGENON L. MARBLEY JUDGE

         This matter is before the Court on Petitioner's Motion to Alter or Amend Judgment (Doc. 208), filed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, requesting reconsideration of the dismissal of his Amended Motion to Vacate under 28 U.S.C. § 2255. Petitioner also asks that the Court withhold ruling on the motion pending resolution of the appeal in United States v. Arthur Smith, Case No. 16-6720, which is currently pending in the United States Court of Appeals for the Sixth Circuit. For the reasons that follow, Petitioner's Motion to Alter or Amend Judgment (Doc. 208) is DENIED.

         Petitioner challenges, in this second or successive § 2255 motion to vacate, his 210-month sentence and characterization as a career offender under § 4B1.1 and § 4B 1.2(a)[1] of the United States Sentencing Guidelines. That characterization, and the consequent sentence, were based on Petitioner's prior robbery convictions. See Presentence Investigation Report, ¶¶ 108, 110. Petitioner based his challenge in this action on Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) (holding that the "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act ("ACCA") is unconstitutionally vague). Amended Motion to Vacate under 28 U.S.C. § 2255 (Doc. 201, PageID# 492). On March 16, 2017, this Court dismissed the Amended Motion to Vacate under 28 U.S.C. § 2255, based on the United States Supreme Court's decision in Beckles v. United States, 580 U.S. __, 137 S.Ct. 886 (2017), which held that the United States Sentencing Guidelines, including 4B 1.2(a), are not subject to vagueness challenges. Order (Doc. 207).

         Petitioner now seeks reconsideration of that dismissal, arguing that, as applied to his case, and in view of United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (holding that a conviction for North Carolina common law robbery categorially does not qualify as a "violent felony" under the ACCA), the residual clause of U.S.S.G. § 4B 1.2(a)(2) is so vaguely worded that it cannot provide the basis for concluding that Petitioner's 1991 North Carolina robbery conviction constitutes a crime of violence under the Sentencing Guidelines. Petitioner further argues that the Supreme Court's decision in Beckles does not foreclose his request for relief in this action because he has demonstrated grounds for relief under Johnson on the premise that the residual clause of § 4B 1.2(a)(2) is unconstitutionally vague as applied in this case.

         To the extent that Petitioner moves under Rule 59(e) of the Federal Rules of Civil Procedure, this Court has the authority to resolve his request for reconsideration. See Howard v. United States, 533 F.3d 472 (6th Cir. 2008) (holding that the limitations on successive motions under Rule 60(b) of the Federal Rules of Civil Procedure do not apply to true motions under Rule 59). See also Gonzalez v. Crosby, 545 U.S. 524 (2005).[2] However, "[s]uch a motion is extraordinary and is seldom granted 'because it contradicts notions of finality and repose."' Thompson v. Kline, No. 4:16-cv-1926, 2017 WL 1166128, at *2 (N.D. Ohio March 29, 2017) (citing Mitchell v. Citizens Bank, No. 3:10-00569, 2011 WL 247421, at *1 (M.D. Tenn. Jan. 26, 2011)). Moreover, a motion for reconsideration is disfavored and unfounded unless it calls "attention to an argument or controlling authority that was overlooked or disregarded in the original ruling, presents evidence or argument that could not previously have been submitted, or successfully points out a manifest error of fact or law." Davie v. Mitchell, 291 F.Supp.2d 573, 634 (N.D. Ohio 2003). "A motion to alter or amend judgment under Rule 59(e) may be granted for a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice." McBee v. United States, Nos. 3:95-cr-82-RLF-RPM-1, 3:l6-cv- 582-RLJ, 2017 WL 888336, at *3 (E.D. Tenn. Mar. 6, 2017) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)). "It is improper to use the motion or to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.'" Id. (quoting Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)).

         Petitioner's motion offers no basis for reconsideration of the dismissal of his § 2255 motion. Petitioner asks mat the Court withhold ruling on this motion pending the outcome of the appeal in United States v. Arthur Smith, No. 16-6720. In Smith, the United States District Court for the Eastern District of Tennessee had held that "North Carolina common law robbery categorically qualifies as a crime of violence under the use-of-force clause" of the United States Sentencing Guidelines; the District Court did not apply the "residual clause" of § 4B 1.2(a)(2). United States v. Smith, No. 3:13-CR-5-TAV-CCS-3, 2016 6875877 (E.D. Tenn. Nov. 21, 2016). The District Court found the reasoning of Garner, also referred to by Petitioner, to be flawed, and further noted:

All federal courts of appeals which have considered robbery offenses that, like North Carolina robbery, require more force than mere purse snatching have concluded that such offenses qualify as either crimes of violence or violent felonies under the use-of-force clause. See Duncan, 833 F.3d 754-57 (Indiana robbery); United States v. Jenkins, 651 F.App'x 920, 927 (11th Cir. 2016) (Florida robbery); United States v. Maxwell, 823 F.3d 1057, 1061 (7th Cir. 2016) (Minnesota robbery); United States v. Lamb, 638 F.App'x 575, 577 (8th Cir. 2016) (Michigan unarmed robbery); United States v. Elliott, 757 F.3d 492, 496 (6th Cir. 2014) (Kentucky first-degree robbery); United States v. Wiggan, 530 F.App'x 51, 57 (2d Cir. 2013) (Connecticut first-degree robbery); United States v. Nigg, 667 F.3d 929, 937 (7th Cir. 2012) (Arizona robbery); United States v. Forrest, 611 F.3d 908, 911 (8th Cir. 2010) (Colorado robbery); United States v. Brown, 437 F.3d 450, 452 (5th Cir. 2006) (Louisiana simple robbery); United States v. Thomas, 280 F.3d 1149, 1159 (7th Cir. 2002) (Georgia robbery); United States v. Tirrell, 120 F.3d 670, 680 (7th Cir. 1997) (Michigan attempted unarmed robbery); United States v. Cornish, 103 F.3d 302, 309 (3d Cir. 1997) (Pennsylvania third-degree robbery); United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990) (Illinois robbery).

Id. at *6. Moreover,

Application Note 1 to § 4B 1.2 provides that "robbery" is a crime of violence. U.S.S.G. § 4B1.2, cmt. n.l. The Sixth Circuit has consistently held that the offenses listed in Application Note 1 are categorically crimes of violence. E.g., United States v. Cooper, 739 F.3d 873, 878 (6th Cir. 2014). To determine whether a particular state offense qualifies as robbery as included in Application Note 1, the Court must consider whether that offense "fall[s] within the generic definition of the crime, which is found by surveying how the crime is described across jurisdiction, as well as consulting the Model Penal Code." United States v. Rede-Mendez, 680 F.3d 552, 556 (6th Cir. 2012). In analyzing whether North Carolina common law robbery falls within the generic definition of the crime, courts have held that it does and, thus, held that the robbery is categorically a crime of violence. See United States v. Moore, 223 F.App'x 422, 424 (5th Cir. 2007); United States v. Woods, 169 F.App'x 790, 791 (4th Cir. 2006).

Id. at *7.

         Therefore, the weight of authority would suggest that Petitioner's 1991 North Carolina robbery conviction qualifies as a crime of violence without reference to the so-called "residual clause" of the Guideline. Under these circumstances, Johnson does not assist Petitioner.

Johnson only invalidated the residual clause of the Armed Career Criminal Act; the Court made it quite clear that its decision did "not call into question ... the remainder of the [ACCA's] definition of violent felony, " i.e., the use-of-physical-force and enumerated-offense clauses of that Act. Johnson, 135 S.Ct. at 2563. Thus, the Guidelines' use-of-force definition in § 4B1.2(a)(1) and the enumerated offenses listed in § 4B1.2(a)(2) likewise remain viable.

Bollinger v. United States, Nos. 2:09-cr-105-JRG-MCLC-1, 2:13-cv-255-JRG, 2017 WL 397571, at *5 (E.D. Tenn. Jan. 27, 2017). Further, Petitioner does not refer to, and this Court is unable to locate, any cases that would serve to distinguish ...


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