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Owens v. United States

United States District Court, W.D. Tennessee, Western Division

February 5, 2018

LESLEY OWENS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court are nine motions by Petitioner Lesley Owens: a July 18, 2016 Motion under Federal Rule of Civil Procedure 52(b) and Rule 59(e) (“Rule 52 and Rule 59 Motion”) (ECF No. 33), six motions for leave to file a supplement to the Rule 52 and Rule 59 Motion, filed between July 29, 2016 and May 30, 2017 (ECF Nos. 34-36, 38-40), [1] a July 10, 2017 motion for hearing (ECF No. 41), and an October 23, 2017 motion to appoint counsel (ECF No. 44).

         For the following reasons, Owens's six motions for leave to file a supplement to Owens's Rule 52 and Rule 59 Motion are GRANTED, Owens's Rule 52 and Rule 59 Motion is DENIED, and his motions for hearing and to appoint counsel are DENIED as MOOT.

         I. Background

         On December 4, 2007, a Federal Grand Jury in the Western District of Tennessee returned an indictment charging Owens with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (“Count One”). (Indictment, Cr. ECF No. 1.)[2] Owens's trial began on January 12, 2009. (Minutes, Cr. ECF No. 44.) On January 15, 2009, a jury found Owens guilty on Count One. (Jury Verdict, Cr. ECF No. 57.) Robert Parris (“Parris”) represented Owens at trial and sentencing. (Parris Aff., ECF No. 12-2.)

         On March 18, 2009, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). (PSR, ECF No. 14 at 1.) The PSR calculated Owens's guideline sentencing range pursuant to the 2008 edition of the United States Sentencing Commission Guidelines Manual (“2008 U.S.S.G.”). (Id. at 5.) Owens's total offense level was 33. (Id.) He received a seven-level enhancement under 2008 U.S.S.G. § 4B1.4 because he was an Armed Career Criminal (“ACC”) under 18 U.S.C. § 924(e). (Id. (citing 2008 U.S.S.G. § 4B1.4(b)(3)(B)).) Owens had five prior qualifying convictions: a 1991 conviction for Robbery in violation of Tennessee law (the “1991 Robbery Conviction”); a 1991 conviction for Aggravated Assault in violation of Tennessee law (the “1991 Assault Conviction”); a 1996 conviction for Simple Robbery in violation of Tennessee law (the “1996 Robbery Conviction”); a 1996 conviction for Aggravated Assault in violation of Tennessee law (the “1996 Assault Conviction”); and a 1999 conviction for Reckless Aggravated Assault in violation of Tennessee law (the 1999 “Assault Conviction”). (Id. at 8-11.)

         On June 19, 2009, the Court held a sentencing hearing. (Minutes, Cr. ECF No. 84.) Although Parris had filed objections based on the age and factual accuracy of the 1991 Assault Conviction, Owens waived those objections during the hearing. (Sentencing Transcript, Cr. ECF No. 97 at 201.)[3] The Court sentenced Owens to 235 months in prison. (Id. at 264.)

         On June 23, 2009, Owens filed a Notice of Appeal. (Notice of Appeal, Cr. ECF No. 82.) Andre C. Wharton (“Wharton”) was appointed to represent Owens beginning on July 13, 2009. (Wharton Aff., ECF No. 12-3.) On January 31, 2012, the Sixth Circuit affirmed Owens's conviction. (Order of USCA, Cr. ECF No. 109.) On June 21, 2012, Owens filed a petition for writ of certiorari in the United States Supreme Court. (Notice, Cr. ECF No. 111.) His petition was denied on October 2, 2012. (Notice, Cr. ECF No. 112.)

         On March 3, 2013, Owens timely filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”). (§ 2255 Motion, ECF No. 1.) Owens argued that he had received ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

         On August 3, 2015, Owens filed a Motion for Leave to Amend to have the Court consider whether his sentence should be vacated under Johnson v. United States, 135 S.Ct. 2551 (2015) (the “Johnson Motion”). (Johnson Mot., ECF No. 26.)

         On June 21, 2016, the Court denied Owens's § 2255 Motion and his Johnson Motion (“Order Denying § 2255 Motion”). (Order Denying § 2255 Mot., ECF No. 31.) The Court decided that Owens's 1991 Assault Conviction, 1996 Robbery Conviction, and 1996 Assault Conviction were violent felonies under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and that Owens was an armed career criminal. (Id.) Judgment was entered on June 21, 2016. (ECF No. 32.)

         The government has not responded to any of Owens's pending motions.

         II. Legal Standard

         A. Federal Rule of Civil Procedure 52(b)

         Under Federal Rule of Civil Procedure 52(b), a “court may amend its findings -- or make additional findings -- and may amend [a] judgment accordingly.”

The primary purpose of Rule 52(b) is to enable the appellate court to obtain a correct understanding of the factual issues determined by the trial court as a basis for the conclusions of law and the judgment entered thereon. A party who failed to prove his strongest case is not entitled to a second opportunity to litigate a point, to present evidence that was available but not previously offered, or to advance new theories by moving to amend a particular finding of fact or a conclusion of law.

         9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2582 (3d ed. 2017) (citations omitted).

         B. Federal Rule of Civil Procedure 59

         Under Federal Rule of Civil Procedure 59(e), a party may file a motion to alter or amend an order if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or a need to prevent manifest injustice. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010). 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).

         III. Analysis

         A. ...


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