United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
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),  a July 10, 2017
motion for hearing (ECF No. 41), and an October 23, 2017
motion to appoint counsel (ECF No. 44).
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
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.) 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
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.)
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.) The Court sentenced Owens to
235 months in prison. (Id. at 264.)
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.)
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).
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.)
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.)
government has not responded to any of Owens's pending
Federal Rule of Civil Procedure 52(b)
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.
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2582 (3d ed. 2017) (citations omitted).
Federal Rule of Civil Procedure 59
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)