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Richardson v. United States

United States District Court, E.D. Tennessee

March 1, 2017

MATTHEW GARY RICHARDSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         On June 24, 2016, Petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 32]. He based the request on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.].[1] The government filed a response in opposition to collateral relief [Doc. 35], Petitioner replied in turn [Doc. 36], and this Court denied the petition in a Memorandum Opinion and Judgment Order entered on December 29, 2016 [Docs. 39, 41]. Specially, it concluded that at least three of Petitioner's prior Georgia burglary convictions remained violent felonies under the ACCA enumerated-offense clause after the Johnson decision and Mathis v. United States, 136 S.Ct. 2243 (2016), and denied a certificate of appealability (COA) [Doc. 39 pp. 3-10]. Before the Court is Petitioner's motion to alter or amend its prior ruling pursuant to Federal Rule of Civil Procedure 59(e) [Doc. 41].

         I. STANDARD OF REVIEW

         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. GenCorp, Inc. v. American Intern. Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). It is improper to use the motion “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5 (2008) (citation omitted). The Court's discretion to grant relief must be used sparingly, as revising a final judgment is an extraordinary remedy. Ira Green, Inc. v. Military Sales & Service Co., 775 F.3d 12, 18 (1st Cir. 2014).

         II. REQUEST FOR RECONSIDERATION

         Petitioner raises two arguments in support of his request that the Court alter or amend its December 29, 2016 Memorandum Opinion and Judgment Order. In the first, he claims that the Court erred when it held that the Georgia burglary statute underlying his convictions is divisible [Doc. 41 pp. 2-3]. In the second, he argues that the Court erred when it denied a COA because, at minimum, reasonable jurists could disagree over the propriety of that conclusion [Id. at 3-6].

         A. Reconsideration of Entitlement to Relief

         Petitioner argues that the Court erred when it found Georgia Code Annotated § 16-7-1 to be a divisible statute and concluded that at least three of Petitioner's convictions thereunder qualified as predicate offenses under the ACCA enumerated-offense clause [Doc. 41].[2] Specifically, he suggests that the Court failed to adequately “distinguish [between] the use of a particular location as a requirement for sufficient pleading in an indictment from its use as an element of a crime” or take into account “the Georgia Pattern Jury Instructions” submitted in conjunction with the petition [Id. at 2 (noting that the instructions only require that jurors agree the defendant entered a “building or dwelling place of another” and thus the enumerated list of locations contained in the Georgia burglary statute constitute means of committing that offense)].

         After concluding that Georgia Code Annotated § 16-7-1 is a non-generic provision because some forms of the offense qualify as predicate offenses under § 924(e) and others do not, the Court explained that the propriety of Petitioner's ACCA enhancement depended on whether or not the burglary statue is divisible or indivisible after the Mathis decision [Doc. 39 pp. 4-6]. It went on to explain that any such determination required consideration of: (1) the text of the statute; (2) any state court decisions interpreting that statute; and (3) where “state law fails to provide clear answers, . . . the record of a prior conviction, ” i.e., charging documents and jury instructions, for the “limited purpose” of distinguishing between means and elements [Id. at 6]. The Court cited the following as support for its conclusion that the provision at issue “contain[ed] several alterative sets of elements as opposed to alternative means of satisfying a single indivisible set of elements, ” i.e., is a divisible statute capable of examination under the modified categorical approach:

Unlike the Iowa statute at issue in Mathis, Georgia Code Annotated § 16-7-1 identifies three distinct categories of location that are subject to unlawful entry-(1) the dwelling house of another, (2) any other building, vehicle, railroad car, watercraft, aircraft, or other structure designed for use as the dwelling of another; or (3) any other building, railroad car, aircraft. The Supreme Court made clear in the Descamps decision that the use of “or” to separate clauses within a provision is a strong indicator that each clause represents an alternative element for which satisfaction equates to an independent criminal offense. See Descamps, 133 S.Ct. at 2281 (explaining that an example of a divisible statute is one “stating that burglary involves entry into a building or an automobile”). While the foregoing weights strongly in favor of finding that the Georgia burglary statute is divisible, the fact that Georgia law requires prosecutors select, identify, and charge the specific location burgled, see, e.g., Morris v. State, 303 S.E.2d 492, 494 (Ga.App. 1983) (stating that “where the defendant is charged with burglary, the indictment must specify the location of the burglary” and concluding indictment was sufficient where it charged a building, ” identified as “the Financial Aid Office and Alumni Office, located at For Valley State College”); State v. Ramos, 243 S.E.2d 693, 693 (Ga.App. 1978) (stating that it is not necessary to prove “the specific place” to obtain a theft-by-taking conviction, but it is necessary to prove the “specific location” to obtain a burglary conviction): Chester v. State, 140 S.E.2d 52, 53 (Ga.App. 1964) (“It must be alleged and proven in an indictment for burglary that there was a breaking and entering of one of the classes of buildings set out in the statute.”), and fact that the Georgia Supreme Court has referred to the location of the crime as “an essential element of the offense, ” DeFrancis v. Manning, 271 S.E.2d 209 (1980), forecloses any doubt.

[Id. at 7-8]. Because his state-court indictments indicate that at least three of Petitioner's prior convictions involved violations meeting the generic definition of burglary, the Court found that Petitioner remained an armed career criminal after the Johnson decision.[3]

         The Court disagrees that it afforded undue weight to the fact that Georgia law requires that location burglarized be included in every burglary indictment. As an initial matter, the United States Supreme Court stated in the Mathis decision that indictments are a valid source of information when attempting to determine whether a statutory list of alternatives contains elements or means. Specifically, the Court explained that “[a] prosecutor charging a violation of a divisible statute must generally select the relevant element form the list of alternatives.” Descamps, 133 S.Ct. at 2290. Thus, the fact that prosecutors in Georgia “must select and identify the locational element of the placed burgled-whether that place be a dwelling, building, railroad car, vehicle, or watercraft-is the hallmark of a divisible statute.” Creekmore v. United States, No. 1:14-cv-8018-SLB, 2017 WL 386660, at *7 (N.D. Ala. Jan. 27, 2017). Even if this Court were to disregard the information contained within indictments as merely a matter of providing sufficient notice, that would not change the fact that the plain language of Georgia Code Annotated § 16-7-1 points toward divisibility, see Id. at 2281 (explaining locations listed in the disjunctive, i.e., separated by “or, ” are typically indicative of a divisible provision), or the fact that the highest authority on Georgia law has characterized the location burglarized as “an essential element of the offense, ” DeFrancis, 271 S.E.2d at 308; accord United States v. Grundy, 842 F.3d 1156, 1166-68 (11th Cir. 2016) (concluding that Georgia Code Annotated § 16-7-1 is a divisible statute); United States v. Martinez-Garcia, 625 F.3d 196, 198 (5th Cir. 2010) (same).

         To the extent that Petitioner cites the dissent to the Grundy opinion in support of his argument that location burglarized must be plead in the indictment but not necessarily agreed upon by the jury and, as a result, cannot be treated as an “element” for purposes of divisibility analysis, the Court remains unpersuaded. While it is true that the Georgia Court of Appeals has characterized the “two essential elements” of Georgia burglary as “lack of authority to enter the dwelling or building . . . [and] intent to commit a felony or theft, ” Lloyd v. State, 308 S.E.2d 25, 25 (Ga.App. 1983)), it did so in an opinion that was focused solely on whether or not the prosecution had proven “lack of authority on the defendant's part to enter the building, ” id. at 25. The reliability of the statement is further brought into question by the fact that the same intermediate appellate court has said that “it must be alleged and proved . . . that there was a breaking and entering of one of the classes of buildings set out in the statute, ” Chester v. State, 140 S.E.2d 52, 53 (Ga.App. 1964) (emphasis added), and that “it is necessary to prove the specific location of a burglary in order to obtain a conviction, ” State v. Ramos, 243 S.E.2d 693, 693 (Ga.App. 1978) (emphasis added). These latter two articulations combined with the Georgia Supreme Court's unambiguous statement that location burglarized is an essential element of Georgia burglary convince the Court that Georgia Code Annotated § 16-7-1 contains alternative elements as opposed to alternative means of committing a single crime.

         To the extent that Petitioner cites Weeks v. State, 616 S.E.2d 852 (Ga.App. 2005), and Davis v. State, 706 S.E.2d 710 (Ga.App. 2011)-both of which found that variations between the specific location alleged in the indictment and proof ultimately presented at trial did not prevent the jury from returning a conviction, as evidence that the “jury need not identify or agree upon a specific type of structure but, rather, any structure under the statute ...


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