United States District Court, E.D. Tennessee
ORDER DENYING POST-JUDGMENT MOTIONS
A. VARLAN UNITED STATES DISTRICT JUDGE
the Court are Petitioner Jay Wallace Ross's motions to
alter or amend the judgment denying his motion to vacate,
set, aside, or correct sentence pursuant to 28 U.S.C. §
2255 [Docs. 1, 3, and 5 in No. 3:15-CV-458]. Upon review of
the pleadings and the record in this cause, along with the
applicable law, the Court finds Ross's motions should be
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
of 2008, Ross pleaded guilty to possessing with intent to
distribute at least 500 grams of cocaine hydrochloride,
possessing a firearm in furtherance of a drug trafficking
crime, possessing a firearm as a convicted felon, and
possessing a firearm as a fugitive from justice [Docs. 8 and
15 in No. 3:08-CR-61]. He was deemed a career offender due to
a prior federal conviction for drug trafficking and a prior
Ohio robbery conviction, so his sentence was enhanced under
§ 4B1.1 of the United States Sentencing Guideline
31, 2013, Ross was sentenced to a 262-month term of
incarceration, which this Court ordered served concurrently
with Ross's undischarged State term of incarceration for
the Ohio robbery offense [Docs. 19, 23, 37 in No.
3:08-CR-61]. Ross's conviction and sentence were affirmed
on appeal, and his request for a writ of certiorari was
denied [Docs. 44 and 47 in No. 3:08-CR-61].
Ross submitted a § 2255 motion and supplement alleging,
in part, that his career-offender designation is invalid
after the Supreme Court's decisions in Johnson v.
United States, 135 S.Ct. 2551 (2015) and Mathis v.
United States, 136 S.Ct. 2243 (2016) [Docs. 48, 49, and
58 in No. 3:08-CR-61]. By Order entered November 22, 2016,
the Court rejected Ross's arguments, finding that
Ross's Ohio conviction of third-degree robbery qualifies
as a crime of violence under the use-of-force clause of
§ 4B1.2 [Doc. 59 p. 10 in No. 3:08-CR-61].
about December 19, 2016, Ross filed the first of the instant
motions to alter or amend judgment, alleging that the Court
erred in denying his § 2255 motion [Doc. 1].
Specifically, Ross asserts that his prior Ohio conviction for
third-degree robbery is unconstitutionally vague and no
longer counts as a “crime of violence” after the
Supreme Court's decision in Johnson and
Mathis, and therefore, he no longer qualifies as a
career offender under the Guidelines.
59(e) of the Federal Rules of Civil Procedure allows a
petitioner to move to alter or amend a judgment within
twenty-eight days after entry of the judgment. See
Fed. R. Civ. P. 59(e). Such a motion may only be granted
“to correct a clear error of law; to account for newly
discovered evidence or an intervening change in the
controlling law; or to otherwise prevent manifest
injustice.” Volunteer Energy Servs., Inc. v. Option
Energy, LLC, 579 Fed.Appx. 319, 330 (6th Cir. 2014)
(quoting Doran v. Comm'r of Soc. Sec., 467
Fed.Appx. 446, 448 (6th Cir. 2012)). A Rule 59 motion may not
be used to relitigate issues out of dissatisfaction with the
Court's initial ruling, nor may it be used to offer a
new, independent basis for a criminal defendant to challenge
his sentence. See, e.g., Howard v. United States,
533 F.3d 472, 475 (6th Cir. 2008) (explaining that Rule 59(e)
“allows for reconsideration; it does not permit parties
to effectively ‘reargue a case'”); see
also Nat'l Ecological Found. v. Alexander, 496 F.3d
466, 477 (6th Cir. 2007) (noting “Rule 59(e) motions
‘are aimed at reconsideration, not initial
consideration'”) (citation omitted).
seeking reconsideration of a judgment that are filed more
than 28 days after judgment are construed as motions for
relief from judgment under Federal Rule of Civil Procedure
60(b). See In re Greektown Holdings, LLC, 728 F.3d
567, 574 (6th Cir. 2013). Like Rule 59(e), “Rule 60(b)
does not allow a defeated litigant a second chance to
convince the court to rule in his or her favor by presenting
new explanations, legal theories, or proof.” Tyler
v. Anderson, 749 F.3d 499, 509 (6th Cir. 2014)
(citing Jinks v. AlliedSignal, Inc., 250 F.3d 381,
385 (6th Cir. 2001)). Neither is it “a substitute for,
nor a supplement to, an appeal.” GenCorp, Inc. v.
Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007) (citation
omitted). Rather, it is appropriate to “relieve a
party. . . from a final judgment” under a
“limited set of circumstances, ” such as where
the petitioner alleges “some defect in the integrity of
. . . federal habeas proceedings.” Gonzalez v.
Crosby, 545 U.S. 524, 527, 532 (2005).
Guidelines provide for the enhancement of a defendant's
offense level under § 4B1.1 if he qualifies as a
“career offender, ” i.e., his conviction is a
“crime of violence or controlled substance offense,
” and he has “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” Guideline § 4B1.1(a).
variant of robbery Ross committed provided that “[n]o
person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall. . .
use or threaten the immediate use of force against
another.” Ohio Rev. Code § 2911.02(A)(3) and (B)
[Docs. 49 and 49-1 in No. 3:08-CR-61]. This Court determined
that because that variant expressly requires the use or
threatened use of immediate force against another, it
qualified as a crime of violence under §
4B1.2(a)(1)'s use-of-force clause [Doc. 59 p.10 in No.
Ross's sentencing and his initial § 2255 motion, the
Sixth Circuit decided United States v. Yates,
holding that § 2911.02(A)(3) is not a predicate offense
under § 4B1.1, because it does not satisfy §
4B1.2(a)(1)'s “use of physical force”
requirement. See United States v. Yates, 866 F.3d
723, 727-33 (6th Cir. 2017). In his ...