Ivory v. United States of America

Filing 26

MEMORANDUM OPINION AND ORDER DENYING 24 MOTION for Relief From Judgment of June 21, 2004 Pursuant to FRCP 60(b)(5) or in the Alternative a Motion Under § 2255(f)(2), DENYING 25 MOTION for relief from judgment re 16 Order Dismissing Case. Issuance of a Certificate of Appealability is not warranted in this case and therefore it is DENIED. Signed by Judge Sharon Lovelace Blackburn on 10/9/2019. (JLC)

FILED
2019 Oct-09 PM 12:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL LEWIS IVORY,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)

Case No. 2:07-CV-8030-SLB-HGD

MEMORANDUM OPINION AND ORDER
This case is presently pending before the court on petitioner Michael Lewis
Ivory’s Motions for Relief from Judgment of August 22, 2008 Pursuant to Fed. Rule
of Civil Proc. 60(b)(5) or, in the Alternative, a Motion under § 2255(f)(2). (Docs. 24,
25.)1 For the reasons set forth below, the court finds that Ivory’s Motions for Relief
are DENIED.
Ivory asks the court to reconsider its prior Order dismissing his Motion to
Vacate. (See doc. 16.) As support for his Motions, he cites Fed. R. Civ. P. 60(b)(5),
(see doc. 25 at 2, 10, 30), which states that “the court may relieve a party . . . from a
final judgment [because] the judgment has been satisfied, released, or discharged; it is

1

Citations to documents in the court’s record in petitioner’s Motion to Vacate,
Case No. 2:07-CV-8030-SLB-HGD, appear as “(Doc. __).” Citations to documents
in the court’s record in the criminal proceedings against petitioner, Case No. 2:03-CR0394-SLB-HNJ, appear as “(Crim. Doc. __).” Citations to page numbers refer to the
page numbers assigned to each document by the court’s CM/ECF electronic filing
system. The court notes that the heading of document 24 refers to Case No. 2:05-CV8041-JHH-HGD. However, the text of this document is almost identical to document
25 in the instant action. Therefore, the court considers the reference to Case No. Case
No. 2:05-CV-8041-JHH-HGD to be in error.

based on an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable . . . .” Fed. R. Civ. P. 60(b)(5).
“Rule 60(b)(5) does not apply in federal habeas proceedings, at least the typical
ones where the judgment is an unconditional denial of habeas relief with no injunctive
relief.” Griffin v. Sec'y, Fla. Dep't of Corr., 787 F.3d 1086, 1090 (11th Cir.
2015)(citing, inter alia, Agostini v. Felton, 521 U.S. 203, 239 (1997))(emphasis
added). Therefore, Ivory’s Rule 60(b)(5) Motion, challenging this court’s Order of
August 22, 2008, dismissing his habeas case, (see doc. 16), is DENIED.
Nevertheless, assuming Rule 60(b)(5) could apply to challenge the denial of his
claim for habeas relief, Ivory’s motion, based on Alleyne v. United States, 570 U.S. 99
(2013), would be denied as without merit under binding Eleventh Circuit caselaw, see
United States v. Harris, 741 F.3d 1245, 1249-50 (11th Cir. 2014).
Ivory contends that this court’s prior decision denying his claim for habeas relief
must be set aside because the jury in his criminal case did not find the fact of his prior
convictions before the court enhanced his sentence. The Alleyne decision “was based
largely on [the Supreme Court’s] reading of its earlier opinion in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).” Harris, 741 F.3d
at 1249. “Notably, however, Apprendi itself drew a distinction between ‘normal’
judicial factfinding and the use of prior convictions as a factual basis for sentence
enhancement,” holding “‘Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’” Id. (quoting Apprendi,

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530 U.S. at 490)(emphasis added in Harris). The Eleventh Circuit held: “Nothing in
the facts or holding of Alleyne indicates that it eliminated Apprendi's exception for
judicial findings of prior convictions that increase a criminal penalty.” Id. at 1249.
Moreover, the court stated that the question of “whether a sentence can be increased
because of prior convictions without a jury finding the fact of those convictions . . .
continues to be governed by Almendarez–Torres v. United States, 523 U.S. 224, 22627, 118 S. Ct. 1219, 1222, 140 L. Ed. 2d 350 (1998), where the Court determined that
the fact of a prior conviction is not an ‘element’ that must be found by a jury.” Harris,
741 F.3d at 1249 (citing Alleyne, 570 U.S. at 111 n.1).
Almendarez-Torres has not been overruled. Therefore, Ivory’s motion, asking
the court to set aside his conviction because the fact of his prior convictions were not
found by the jury, is without merit.
As an alternative to his Rule 60(b)(5) motion, Ivory asks the court to consider
his Alleyne claim pursuant to § 2255(f)(2). (See doc. 25 at 1, 10-11.) A motion that
seeks to add a new ground of relief is to be treated as a successive habeas petition.
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). This includes motions asserting “a
subsequent change in the substantive law.” Id. at 531-32. Ivory had previously filed
a Motion to Vacate pursuant to § 2255, which did not include a claim based on the
failure of the jury to determine the fact of his prior convictions. (See generally docs.
1 and 2.) Also, the Eleventh Circuit has not authorized Ivory to file a successive
habeas petition.2 “Without authorization, the district court lacks jurisdiction to consider
2

For the reasons set forth above, such a successive petition would be without

merit.
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a second or successive petition.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005)(citing Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)); see 28
U.S.C. §§ 2244 (a)-(b); 2255(h).
Because Ivory is not authorized to file a successive petition challenging his
conviction and sentence under the rule of law announced in Alleyne, the court lacks
jurisdiction to consider this claim under § 2255(f).
. . . [O]nce a federal court determines that it is without subject
matter jurisdiction, the court is powerless to continue. As the Supreme
Court long ago held in Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L.
Ed. 264 (1868), “[w]ithout jurisdiction the court cannot proceed at all in
any cause. Jurisdiction is power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of announcing the
fact and dismissing the cause.” Id. at 514; see also Wernick v. Mathews,
524 F.2d 543, 545 (5th Cir. 1975)(“[W]e are not free to disregard the
jurisdictional issue, for without jurisdiction we are powerless to consider
the merits.”).
Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).
This court is without jurisdiction to consider Ivory’s unauthorized successive
habeas petition; therefore, his motion to consider his claim under § 2255(f)(2) is
DENIED.
For the foregoing reasons, Ivory’s Motions for Relief pursuant to Fed. R. Civ.
P. 60(b)(5) or, in the Alternative, Under § 2255(f)(2), (docs. 24, 25), are DENIED.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, “The district
court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” The applicant for § 2255 relief “cannot take an appeal unless
a circuit justice or a circuit or district judge issues a certificate of appealability under
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28 U.S.C. § 2253(c).” Fed. R. App. P. 22(b)(1). And, the “certificate of appealability
may issue . . . only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2)(emphasis added). To make a substantial
showing of the denial of a constitutional right, the applicant must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 336
(2003)(citations and internal quotations omitted).
The court lacks jurisdiction to entertain Ivory’s Motions for Relief under § 2255
without authorization from the Eleventh Circuit Court of Appeals. Also, no claim for
relief is available to Ivory under Rule 60(b)(5), and, if it were, such claim is without
merit under Eleventh Circuit precedent. Reasonable jurists could not disagree. Also,
Ivory has not demonstrated that the issue he raises is reasonably debatable and/or
deserves encouragement to proceed further. Therefore, issuance of a certificate of
appealability is not warranted in this case.
A Certificate of Appealability is DENIED.
DONE this 9th day of October, 2019.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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