United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING RULE 59(E)
E.HUDSON, UNITED STATES DISTRICT JUDGE.
Memorandum Opinion and Order entered on April 15, 2016, the
Court denied Owens's motion pursuant to 28 U.S.C. §
2255 because it was barred by the applicable one-year statute
of limitations. United States v. Owens, No.
3:05CR264-HEH, 2016 WL 1562917, at *3 (E.D. Va. Apr. 15,
2016). On May 16, 2016, the Court received from Owens a
motion seeking relief under Fed.R.Civ.P. 59(e) ("Rule
59(e) Motion, " ECF No. 86).
of a judgment after its entry is an extraordinary remedy
which should be used sparingly." Pac. Ins. Co. v.
Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) (internal quotation marks omitted). The United States
Court of Appeals for the Fourth Circuit recognizes three
grounds for relief under Rule 59(e): "(1) to accommodate
an intervening change in controlling law; (2) to account for
new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice."
Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir.
1993) (citing Weyerhaeuser Corp. v. Koppers Co.,
Ill. F.Supp. 1406, 1419 (D. Md. 1991); Atkins v.
Marathon LeTourneau Co., 130 F.R.D. 625, 626 (S.D.Miss.
apparently relies on the third ground for relief, arguing
that because his § 2255 Motion was filed as a
"continuation of [his] prior criminal action[, ] there
should be no 'statute of limitations on when a 2255
Motion may be filed in this cause of action." (Rule
59(e) Mot. 2.) Owens further argues that "the merest
implication of a defendant's constitutional rights being
violated by a sentencing court... should by itself be enough
to toll the procedural bar which has been raised by the
Government in this case." (Id. at 3.)
Owens's arguments for exempting his case from the
relevant statute of limitations are frivolous. Moreover,
"mere disagreement [with a court's ruling] does not
support a Rule 59(e) motion." Hutchinson, 944
F.2d at 1088.
§ 2255 Motion, Owens asserted that, under Descamps
v. United States, 133 S.Ct. 2276 (2013), he was
erroneously sentenced as a career offender because he had
entered Alfordpleas in the two predicate offenses. In
his Rule 59(e) Motion, Owens now asserts that he was
erroneously sentenced as a career offender pursuant to the
Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). (Rule 59(e) Mot. 6.)
[u]nder the Armed Career Criminal Act [("ACCA")]
¶ 1984, a defendant convicted of being a felon in
possession of a firearm faces more severe punishment if he
has three or more previous convictions for a "violent
felony, " a term defined to include any felony that
"involves conduct that presents a serious potential risk
of physical injury to another."
Johnson, 135 S.Ct. at 2555 (quoting 18 U.S.C. §
924(e)(2)(B)). This part of the definition of violent felony
"ha[s] come to be known as the Act's residual
Johnson Court held "that imposing an increased
sentence under the residual clause of the [ACCA] violates the
Constitution's guarantee of due process."
Id. at 2563. In Welch, the Court held that
"Johnson announced a substantive rule that has
retroactive effect in cases on collateral review." 136
S.Ct. at 1268. Recently, the United States Court of Appeals
for the Fourth Circuit has suggested that the Supreme
Court's decision in Johnson may apply
retroactively to render unconstitutional the residual clause
of United States Sentencing Guideline ("U.S.S.G.")
§ 4B 1.2(a)(2), which categorizes a crime of violence as
including "conduct that presents a serious potential
risk of physical injury to another." See In re
Hubbard, 825 F.3d 225, 235 (4th Cir. 2016). The Court
need not reach that issue at this juncture, because even
if Johnson did apply retroactively and rendered the
residual clause in § 4B 1.2(a)(2) unconstitutional,
Owens is not entitled to relief.
was sentenced as a career offender because of his "two
prior felony convictions for drug distribution: Selling
Narcotics and Unlawful Possession With Intent to Distribute
Cannabis; and one prior conviction for a crime of violence:
Assault 1st Degree." (Presentence Report ¶ 35.)
Even if Owens's prior conviction for a crime of violence
was excluded, Owens would still qualify as a career offender
because of his two prior felony drug distribution
convictions. See U.S.S.G. § 4B 1.1(a).
Accordingly, the Supreme Court's decisions in
Johnson and Welch provide no basis for
relief, and Owens's Rule 59(e) Motion (ECF No. 86) will
appeal may not be taken from the final order in a § 2255
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(B). A COA will not issue unless a prisoner makes
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This requirement is
satisfied only when "reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)). Owens has not satisfied
this standard. Accordingly, a certificate of appealability
will be denied.
Clerk is directed to send a copy of the Memorandum Opinion to
Owens and counsel for the Government.