Brooks v. United States of America

Filing 53

ORDER denying 47 Motion for Reconsideration; granting 52 Motion for Leave to File Reply. Signed by Judge Timothy J. Corrigan on 4/20/2016. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEITH LARON BROOKS,
Petitioner,
vs.

Case No.:

UNITED STATES OF AMERICA,

3:12-cv-1266-J-32JRK
3:09-cr-76-J-32JRK

Respondent.
______________________________________/
ORDER
This case is before the Court on Petitioner Keith Laron Brooks’s “Motion for
Reconsideration Pursuant to Rule 59(e) of the Federal Rules of Civil Procedure” (Doc.
47), the United States’ response (Doc. 51), as well as Petitioner’s “Motion Requesting
Leave to File Reply” and accompanying reply (Doc. 52). On January 8, 2016, this
Court denied Petitioner relief under 28 U.S.C. § 2255. (Doc. 44). Petitioner urges the
Court to reconsider the denial of the claim that his enhanced sentence under the
Armed Career Criminal Act (ACCA) is unconstitutional following Johnson v. United
States, 135 S. Ct. 2551 (2015). (See generally Doc. 47; see also Doc. 44 at 39-42; Doc.
43). In the order denying § 2255 relief, the Court explained that Johnson did not
affect Petitioner because he had at least three prior convictions that qualified as
ACCA predicate offenses, even excluding the Residual Clause. The Court noted that
Petitioner had prior felony convictions for armed robbery, aggravated battery, and
the sale or delivery of cocaine. The Court explained that, after taking away the

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Residual Clause, Petitioner’s prior convictions for armed robbery and aggravated
battery still qualified as “violent felonies” under the ACCA’s “elements clause,” 18
U.S.C. § 924(e)(2)(B)(i), and that his prior felony convictions for the sale or delivery
of cocaine qualified as a “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii). The
Court further noted that Petitioner admitted at his sentencing hearing that his prior
convictions qualified as ACCA predicate offenses. Petitioner insists, nevertheless,
that the Court erred in determining that his prior convictions qualified under the
ACCA’s “elements clause” or “enumerated offenses” clause, see 18 U.S.C. §
924(e)(2)(B)(i)-(ii). (Doc. 47 at 1-6, 7-11). 1
Additionally, Petitioner asks the Court to consider a new claim. Petitioner
contends that counsel gave ineffective assistance at the sentencing stage by not
challenging whether Petitioner’s prior convictions qualified under the ACCA. (Id. at
6-7).
Under Federal Rule of Civil Procedure 59, a party may move to alter or amend
the judgment within 28 days of its entry. Fed. R. Civ. P. 59(e). The decision to alter
or amend a judgment is an extraordinary remedy, which “is committed to the sound
discretion of the district judge.” Tristar Lodging, Inc. v. Arch Specialty, Ins. Co., 434
F. Supp. 2d 1286, 1301 (M.D. Fla. 2006) (quoting Am. Home Assur. Co. v. Glenn
Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir. 1985)). “The only grounds for
granting a Rule 59(e) motion are newly-discovered evidence or manifest errors of law

In its Order, the Court did not address whether Petitioner’s prior convictions
qualified under the “enumerated offenses” clause, § 924(e)(2)(B)(ii).

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or fact.” Gordon v. Social Sec. Admin., Com’r, 625 F. App’x 512, 513 (11th Cir. 2015)
(citing Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)). “A Rule 59(e) motion
cannot be used to relitigate old matters or present evidence that could have been
raised prior to the entry of judgment.” Id. (citing Jacobs v. Tempur–Pedic Int'l,
Inc., 626 F.3d 1327, 1344 (11th Cir.2010)).
To the extent Petitioner challenges the ruling that his prior convictions for
armed robbery and aggravated battery qualify as ACCA predicate convictions, Rule
59(e) relief is not warranted because he merely seeks to re-litigate a claim the Court
has already denied. Petitioner also has not identified a manifest error of law or fact
in the Court’s decision, particularly considering that Petitioner conceded at the
sentencing hearing that his prior convictions were ACCA predicate offenses. 2
Petitioner contends that the Court erred in classifying his aggravated battery
conviction as a “violent felony” under the elements clause, because, he argues,
Florida’s aggravated battery statute is an indivisible, overbroad statute that does not
categorically qualify as a “violent felony.” (Doc. 47 at 3-5). Petitioner is correct that
aggravated battery, as defined under Florida law, does not categorically qualify as a
“violent felony.” (See Doc. 44 at 41 n.14). But Petitioner is incorrect in arguing that
the aggravated battery statute is an indivisible, overbroad statute, which is
categorically non-violent. The Eleventh Circuit has concluded otherwise, holding
that the aggravated battery statute is divisible because there are alternative ways of

Additionally, Petitioner never challenged his ACCA sentence on direct appeal.
See United States v. Brooks, 426 F. App’x 878 (11th Cir. 2011).

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committing aggravated battery under Florida law, some of which involve the use of
force and some of which do not. See United States v. Diaz-Calderone, 716 F.3d 1345,
1347-49 (11th Cir. 2013) (authorizing use of the “modified categorical approach” for
analyzing Florida convictions for aggravated battery because the statute contains
alternative elements); United States v. McDuffie, 550 F. App’x 859, 862-63 (11th Cir.
2013). Based on the uncontested facts in Petitioner’s presentence investigation report
(PSR) – facts that Petitioner admitted, and which showed that Petitioner participated
in the brutal beating of several victims (one of whom died) – the Court concluded that
Petitioner’s aggravated battery conviction could not have been for merely touching a
pregnant woman, see Fla. Stat. § 784.045(1)(b), but for “intentionally or knowingly
caus[ing] great bodily harm, permanent disability, or permanent disfigurement,” or
using a deadly weapon, Fla. Stat. § 784.045(1)(a). (See also Doc. 44 at 41 & n.14). The
Court further identified several published cases authorizing the Court’s reliance on
uncontested statements found in the PSR to ascertain the nature of an ambiguous
prior conviction. Doc. 44 at 41 n.14 (citing United States v. Beckles, 565 F.3d 832,
843 (11th Cir. 2009); United States v. Bennett, 472 F.3d 825, 832-34 (11th Cir. 2006);
United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006); United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989)). Accordingly, Petitioner has not identified a
manifest error of law or fact in the Court’s conclusion that the prior conviction for
aggravated battery qualified as an ACCA predicate offense under the “elements
clause.”

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Petitioner also contends that the Court erred in classifying armed robbery as
an ACCA “violent felony,” but the Eleventh Circuit has affirmed that an armed
robbery conviction under Florida law qualifies as a “violent felony” under the ACCA’s
elements clause. United States v. Dowd, 451 F.3d 1244, 1255 (11th Cir. 2006) (citing
18 U.S.C. § 924(e)(2)(B)(i)). Thus, Petitioner has not demonstrated an error, let alone
manifest error, in the Court’s determination that the armed robbery conviction also
qualified as an ACCA predicate offense under the “elements clause.”
To the extent Petitioner asks the Court to entertain a new ineffective
assistance claim with regard to counsel not challenging whether his prior convictions
qualified under the ACCA, Rule 59(e) relief is also unwarranted. “A Rule 59(e) motion
cannot be used to… present evidence that could have been raised prior to the entry
of judgment.” Gordon, 625 F. App’x at 513. Nor may a party use a motion for
reconsideration “to set forth new theories of law.” Mays v. U.S. Postal Serv., 122 F.3d
43, 46 (11th Cir. 1997). Petitioner could have pled his ineffective assistance claim
when he raised the Johnson claim (see Doc. 43, Motion to Amend), but he did not.
Petitioner cannot obtain Rule 59(e) relief now by presenting a new theory for relief
from his underlying conviction and sentence. In any event, Petitioner has not been
prejudiced because the ACCA challenge is without merit.
Accordingly, it is hereby ORDERED:
1.

Petitioner’s Motion Requesting Leave to Reply (Doc. 52) is GRANTED.

The Court has considered Petitioner’s accompanying reply.

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2.

Petitioner’s “Motion for Reconsideration Pursuant to Rule 59(e) of the

Federal Rules of Civil Procedure” (Doc. 47) is DENIED.
DONE AND ORDERED at Jacksonville, Florida this 20th day of April, 2016.

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Copies:
Counsel of record
Petitioner Keith Laron Brooks

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