United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad United States District Judge
Anthony Taylor, a federal inmate proceeding pro se,
previously moved to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. By memorandum opinion
and order entered July 17, 2017, the court granted the
government's motion to dismiss. Taylor has now filed a
motion for reconsideration under Rule 59(e) of the Federal
Rules of Civil Procedure and a motion to amend his motion for
reconsideration. For the following reasons, the motion to
amend will be granted and the amended motion for
reconsideration will be denied.
February 13, 2017, Taylor filed a §2255 petition,
challenging his conviction for possession of a firearm in
relation to a crime of violence under 18 U.S.C. §
924(c). Taylor argued that conspiracy to commit Hobbs Act
robbery is not a predicate crime of violence to sustain such
granting the government's motion to dismiss, the court
noted that Taylor's judgment contained an error (the
"Judgment"). It mistakenly reflected that Taylor
was convicted of conspiracy to commit Hobbs Act robbery. Upon
review of the record, including the jury instructions, the
verdict sheet, statements made by counsel during trial, and
statements made by the court at sentencing, the court
concluded that Taylor was instead convicted of the
substantive offense of Hobbs Act robbery. See United
States v. Taylor. 7:17CV81229, 2017 U.S. Dist. LEXIS
110132, at *8-10 (W.D. Va. July 17, 2017). As such, the court
directed the Clerk to amend the Judgment to reflect the
correct conviction pursuant to Federal Rule of Criminal
Procedure 36. Id. at * 10. Taylor now asks, pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure, that
the court alter or amend its final order granting the
government's motion to dismiss. Taylor further asks that
the court grant him leave to amend his motion for
reconsideration and has submitted an amended
59(e) provides that a court may, in its discretion, alter or
amend a judgment. See Fed. R. Civ. P. 59(e);
Robinson v. Wix Filtration Corp., 599 F.3d 403, 433
(4th Cir. 2010) (noting that motions to alter or amend final
judgments under Rule 59(e) are discretionary). The United
States Court of Appeals for the Fourth Circuit has recognized
three grounds for amending a judgment under this rule:
"(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." Pac. Ins. Co. v. Am. Nat'l Fire Ins.
Co., 148 F.3d 396, 403 (4th Cir. 1998). Rule 59(e)
motions "are not at the disposal of an unsuccessful
party to 'rehash' the same arguments and facts
previously presented." Rouse v. Nielsen, 851
F.Supp. 717, 734 (D.S.C. 1994) (quoting Keves v.
Nat'l R.R. Passenger Corp.. 766 F.Supp. 277, 280
(E.D. Pa. 1991)). Reconsideration "is an extraordinary
remedy that should be applied sparingly." Mayfield
v. NASCAR. Inc.. 674 F.3d 369, 378 (4th Cir. 2012).
original motion for reconsideration, Taylor asks the court to
amend or alter its final order granting the government's
motion to dismiss for three reasons: (1) because Taylor
relied on the error in the Judgment, (2) because the court
should have alerted Taylor about the error prior to
dismissing his § 2255 petition, and (3) because the
court should retroactively apply the holding of Dean v.
United States. 137 S.Ct. 1170 (2017) to Taylor's
case. In his amended motion for reconsideration, Taylor
argues that the court should vacate its order dismissing
Taylor's § 2255 petition and stay further
proceedings pending a decision by the United States Court of
Appeals for the Fourth Circuit in United States v.
Ali, Appeal No. 15-322. United States v. Ali is
currently being held in abeyance pending the Supreme
Court's decision in Dimaya v. Sessions. 803 F.3d
110 (9th Cir. 2015), cert granted. 137 S.Ct. 31.
Taylor also asks the court to alter or amend its order
dismissing Taylor's § 2255 petition in light of the
recent decision in United States v. Havnes. 2017
U.S. Dist. LEXIS 21844 (CD. 111. Feb. 6, 2017), which
addressed whether Hobbs Act robbery can be accomplished
without the use of physical force.
Taylor's first argument, the court is not persuaded that
it should amend its order dismissing Taylor's § 2255
petition because Taylor relied upon the error in the
Judgment. Taylor avers that he relied blindly on the
assistance of counsel, and that he did not fully understand
his charges until he arrived at the Bureau of Prisons. He
claims that, once incarcerated, he learned that his
convictions were listed in the Judgment. At that time, the
Judgment erroneously stated that Taylor was convicted of
conspiracy to commit Hobbs Act robbery.
record, however, is rife with instances in which Taylor was
made aware that he was being convicted of the actual
robberies-not conspiracy to rob. During the opening
statements at the first of his two trials at which Taylor
was present, counsel for the government stated, "Folks,
Mr. Taylor is charged with two counts of robbery under the
Hobbs Act." Trial Tr. 24:9-10, October 22, 2012, Docket
No. 69. The government made a similar argument in its opening
statements in the second trial. See Trail Tr. 21:15-17, Jan.
23, 2013, Docket No. 159 ("We're here today because
the gentleman seated there at counsel table, in the brown
suit is charged with two counts of robbery . . . ."). In
the second trial, during a witness' testimony,
Taylor's counsel objected to a certain line of questions,
stating, "My client is charged with two distinct
instances, not a conspiracy.... The government could
have charged him with conspiracy and did not. He is not
charged with conspiracy." Id. at 97:16-98:14
(emphasis added). At closing, the government further
described Taylor's behavior as a robbery. See Trial Tr.
557:18-21, Jan. 25, 2013, Docket No. 161 ("So you'll
have to ask yourself, when he committed these robberies . . .
."). Taylor's own attorney stated to the jury that
the firearm counts were "based on the
robbery." Id. at 580:1-2 (emphasis added).
At sentencing, the court recounted that Taylor was convicted
on three counts by a jury, including "Count One,
interference with commerce by threats or violence, Hobbs Act
robbery." Sent. Tr. 3:10-11, April 23, 2014, Docket No.
162: see also Id. 72:23-25 (admonishing the
defendant for being "very deeply involved" in the
Taylor's own pro se submissions to this court
indicate an understanding that he was convicted of Hobbs Act
robbery. After sentencing, Taylor appealed his convictions.
the Fourth Circuit and the Supreme Court of the United States
identified Taylor as being convicted of Hobbs Act robbery.
See Taylor v. United States, 136 S.Ct. 2074, 2078
(2016) ("Taylor was convicted of two counts of Hobbs Act
robbery"); United States v. Taylor, 754 F.3d
217, 220 (4th Cir. 2014) ("Taylor appeals his
convictions for two counts of Hobbs Act robbery.").
After disposition of his appeal, Taylor submitted a petition
for relief, which the court construed as a conditional §
2255 petition. See Order, July 17, 2014, Docket No.
Notably, in this submission, Taylor mentions his indictment
and conviction of Hobbs Act robbery. Id. at 2-4. Not
once does the word "conspiracy" appear, despite the
fact that the erroneous judgment was entered several months
prior to Taylor's initial § 2255 submission.
Finally, Taylor's most recent motion to amend his motion
for reconsideration addresses only Hobbs Act robbery-not
conspiracy to commit Hobbs Act robbery. Docket No. 228.
also had the occasion to argue that Hobbs Act robbery is not
a predicate crime of violence. In support of its motion to
dismiss, the government asserted that "Taylor was
indicted ... and charged with two counts of Hobbs Act
robbery." Br. in Supp. of Mot. to Dismiss 1, Docket No.
215. The government did not address any argument related to
conspiracy to commit Hobbs Act robbery. In responding to the
government's motion to dismiss, Taylor had ...