United States District Court, N.D. Ohio, Eastern Division
CHARLES L. IVEY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OF OPINION AND ORDER [Resolving ECF No.
Y. Pearson United States District Judge
before the Court is Respondent's Motion for
Reconsideration. ECF No. 54. Respondent moves the
Court to reconsider its Order granting Petitioner's
Motion to Vacate in light of the Sixth Circuit's recent
decision in United States v. Patterson, 853 F.3d 298 (6th
Cir. 2017). Petitioner responded. ECF No. 55.
Respondent did not reply, and the time to do so has passed.
For the following reasons, the Court grants the Motion to
Federal Rules of Civil Procedure do not provide for motions
for reconsideration. The Sixth Circuit, however, has held
that a motion to reconsider may be treated as a motion to
alter or amend a judgment under Fed. R. Civ. P.
59(e). See Rodriguez v. City of Cleveland, No.
1:08CV1892, 2009 WL 1565956, at *1 (N.D. Ohio June 6, 2009)
(citing Smith v. Hudson, 600 F.2d 60, 62 (6th Cir.
1979)). A district court may grant a Rule 59 motion
to alter or amend judgment only if there was (1) a clear
error of law, (2) newly discovered evidence, (3) an
intervening change in controlling law, or (4) a need to
prevent manifest injustice. Am. Civil (1:16CV716)
Liberties Union v. McCreary Cty., 607 F.3d 439, 450
(6th Cir. 2010) (quoting Intera Corp. v. Henderson,
428 F.3d 605, 620 (6th Cir. 2005)).
Court summarized the factual and procedural background of
this case in its Memorandum of Opinion and Order granting the
Motion to Vacate. ECF No. 52. In that Order, the
Court determined that Petitioner's Robbery conviction
under Ohio Rev. Code § 2911.02(A)(2) was not a violent
felony, given the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015). ECF
No. 52 at PageID #: 413-16. Three days after the Court issued
its Order, the Sixth Circuit issued its opinion in United
States v. Patterson. In Patterson, the Sixth
Circuit considered petitioner Patterson's conviction
under Ohio Rev. Code § 2911.01(A)(1), holding
that the conviction qualified as an Armed Career Criminal Act
(“ACCA”) predicate offense under the elements
clause. In so holding, the Sixth Circuit explained:
Because any defendant convicted of aggravated robbery under
Ohio Rev. Code § 2911.01(A)(1) necessarily threatened to
harm someone else with a deadly weapon, all such defendants
committed the lesser included offense of robbery under
Ohio Rev. Code § 2911.02(A)(2), which in turn
requires proof that the defendant “[i]nflict[ed],
attempt[ed] to inflict, or threaten[ed] to inflict physical
harm on another.”
Patterson, 853 F.3d at 303 (citations omitted)
(emphasis added). The Patterson court further cited
its unpublished opinion in United States v. Finley,
No. 15-6222, slip op. at 2-3 (6th Cir. Feb. 22, 2017), in
which it “ruled that even Ohio Rev. Code §
2911.02(A)(2), the lesser included form of robbery,
counts as a violent felony under the elements clause.”
Patterson, 853 F.3d at 303.
the Sixth Circuit's clear instruction that Ohio Rev.
Code § 2911.02(A)(2) is a violent felony, the Court
finds that Petitioner's Robbery conviction is an ACCA
predicate offense. 18 U.S.C. § 924(e). Because
Petitioner has three convictions that qualify as ACCA
predicate offenses-Robbery, Assault on a Peace Officer, and
Felonious Assault- Petitioner was properly subjected to the
ACCA's enhanced penalties.
Government's Motion for Reconsideration is granted. The
Court's prior ruling is vacated. Petitioner's Motion
to Vacate is denied. The Resentencing Hearing scheduled for
July 6, 2017 is cancelled and the Motion to Continue (ECF
No. 60) is denied as moot.
 Petitioner argues that even if
Respondent is correct in regards to the “force clause,
” the statute still lacks the requisite mens
rea. ECF No. 55 at PageID #: 424. The
Patterson court, considering Ohio Rev. Code
§ 2911.01(A)(1), rejected this argument, stating
that “the government does not need to prove a specific
intent for every word in the elements clause.”
Patterson, 853 F.3d at 304. The Sixth Circuit
further noted that the acts proscribed by the statute may
satisfy the ACCA “use of force” requirement.
Id. The Sixth Circuit also rejected defendant's
argument that the statute could be applied to a person who
recklessly or negligently violated the statute, noting that
there was no evidence of such application. The Sixth
Circuit's holding in Patterson applies in this
case as well. The “very act” of inflicting or
attempting to inflict serious physical harm on another
satisfies the ACCA's requirement of “use, attempted