Smith v. United States of America

Filing 14

ORDER denying 13 Petition for Reconsideration Based on Misapplication of Applicable Law, construed as a motion to alter or amend the judgment under Rule 59(e). Signed by Judge Marcia Morales Howard on 10/12/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

RUVEL ALFRED SMITH, JR.,
Petitioner,
vs.

Case No.:

3:13-cv-924-J-34PDB
3:97-cr-120-J-34PDB

UNITED STATES OF AMERICA,
Respondent.
__________________________________/
ORDER
This case is before the Court on Petitioner Ruvel Alfred Smith’s “Petition for
Reconsideration Based on Misapplication of Applicable Law,” which the Court construes
as a motion to alter or amend the judgment under Rule 59(e), Federal Rules of Civil
Procedure. (Doc. 13, Rule 59(e) Motion).
More than 13 years after his conviction and sentence became final, Smith moved
under 28 U.S.C. § 2255 to vacate his mandatory life sentence, which was imposed
pursuant to 21 U.S.C. § 841(b)(1)(A) (1996). (See Doc. 1, Motion to Vacate). Among
other things, Smith contended that (1) in light of Alleyne v. United States, 133 S. Ct. 2151
(2013), he was deprived of his Sixth Amendment right to a trial by jury because a judge
found the two facts that, together, led to the imposition of a mandatory life sentence: (a)
the drug quantity, and (b) the fact of his 1978 and 1991 Florida felony drug convictions1;

1
In Alleyne, the Supreme Court held that any fact (other than the fact of a prior conviction)
that increases the mandatory minimum sentence is an element of the crime, and as such, a
defendant has the right to require the government to prove that fact beyond a reasonable doubt
to a jury. 133 S. Ct. at 2162-63. The Supreme Court has also held, however, that a judge may
find the fact of a prior conviction, even where doing so increases the mandatory minimum or
maximum sentence, without violating the right to a trial by jury. Almendarez-Torres v. United
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(2) in light of Descamps v. United States, 133 S. Ct. 2276 (2013), and Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013), the Court erred when, at the sentencing hearing in
November 1997, it counted his 1978 and 1991 Florida felony drug convictions toward §
841(b)(1)(A)’s mandatory-life sentence enhancement; and (3) the Court lacked subject
matter jurisdiction to convict and sentence him because the Indictment (Crim. Doc. 1)
failed to allege the drug quantity.
A

motion

to

alter

or

amend

a

judgment

may

be

filed

pursuant

to Rule 59(e). Rule 59(e) affords the Court discretion to reconsider an order which it has
entered. See Mincey v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000); O'Neal v. Kennamer,
958 F.2d 1044, 1047 (11th Cir. 1992). “The only grounds for granting a Rule 59 motion
are newly[ ]discovered evidence or manifest errors of law or fact.” Arthur v. King, 500
F.3d 1335, 1343 (11th Cir. 2007) (quotations and citations omitted). This Court has
interpreted those parameters to include “(1) an intervening change in controlling law; (2)
the availability of new evidence; and (3) the need to correct clear error or manifest
injustice.” Lamar Advertising of Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480, 489
(M.D. Fla. 1999). For example, reconsideration may be appropriate where “the Court has
patently misunderstood a party.” O'Neill v. The Home Depot U.S.A., Inc., 243 F.R.D. 469,
483 (S.D. Fla. 2006).

States, 523 U.S. 224 (1998). Alleyne did not call Almendarez-Torres into question. Alleyne, 133
S. Ct. at 2160 n.1. Thus, even though the judge in this case functioned as a fact-finder in
determining that Smith had two prior felony drug convictions, this did not violate Smith’s right to a
trial by jury.
To the extent Smith argues that he was deprived of the right to a trial by jury when the
judge found the drug quantity necessary to impose a life sentence under 21 U.S.C. § 841(b)(1)(A),
Alleyne suggests that Smith is correct. The reason why Smith is nonetheless not entitled to
collateral relief is that Alleyne does not apply retroactively on collateral review. Jeanty v. Warden,
FCI-Miami, 757 F.3d 1283, 1285-86 (11th Cir. 2014); King v. United States, 610 F. App’x 825,
827-28 (11th Cir. 2015).
2 

The purpose of Rule 59 is not to ask the Court to reexamine an unfavorable ruling
in the absence of a manifest error of law or fact. Jacobs v. Tempur-Pedic Int'l., Inc., 626
F.3d 1327, 1344 (11th Cir. 2010). As such, Rule 59(e) cannot be used “to relitigate old
matters, raise argument or present evidence that could have been raised prior to the entry
of judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th
Cir. 2005). Additionally, motions to alter or amend “should not be used to raise arguments
which could, and should, have been made before the judgment was issued.” O'Neal, 958
F.2d at 1047 (quotations and citations omitted). Indeed, permitting a party to raise new
arguments on a motion for reconsideration “essentially affords a litigant 'two bites of the
apple.”' Am. Home Assurance Co. v. Glenn Estess & Assocs., Inc., 763 F.2d 1237, 1239
(11th Cir. 1985); see also Mincey, 206 F.3d at 1137 n.69 (citation omitted); Mays v. United
States Postal Service, 122 F.3d 43, 46 (11th Cir. 1997) (“[A] motion to reconsider should
not be used by the parties to set forth new theories of law”). Accordingly, the Eleventh
Circuit Court of Appeals has held that the “[d]enial of a motion for reconsideration is
especially sound when the party has failed to articulate any reason for the failure to raise
the issue at an earlier stage of the litigation.” Sanderlin v. Seminole Tribe of Fla., 243
F.3d 1282, 1292 (11th Cir. 2001) (internal quotations and citation omitted). Moreover,
“[w]hen evaluating a motion for reconsideration, a court should proceed cautiously,
realizing that 'in the interests of finality and conservation of scarce judicial resources,
reconsideration of a previous order is an extraordinary remedy to be employed
sparingly.”' United States v. Bailey, 288 F. Supp. 2d 1261, 1267 (M.D. Fla. 2003) (citation
omitted).

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Smith has not identified any new evidence or a manifest error of law or fact that
warrants altering or amending the judgment. Rather, Smith appears to misunderstand
the Court’s Order dismissing the Motion to Vacate (see Doc. 11, Order Dismissing Motion
to Vacate), and attempts to rehash arguments that the Court already dismissed or
rejected. For example, Smith contends that “the Court determined that Petitioner's claim
that his Fifth Amendment right to due process and his Sixth Amendment right to jury trial
was [sic] not violated because the judge found two critical facts on which his sentence
was based.” Rule 59 Motion at 1. That is not what the Court decided. The Court
determined that Smith’s Motion to Vacate was untimely because he filed it 13 years after
his conviction and sentence became final, and the Supreme Court cases he relied on,
Alleyne, Descamps, and Moncrieffe, could not render the Motion to Vacate timely under
28 U.S.C. § 2255(f)(3).
Smith continues to insist that his prior felony cocaine convictions (see Doc. 9-2,
Section 851 Notice), in violation of section 893.13(1)(a), Florida Statutes, should not count
as “felony drug offenses” for purposes of imposing a heightened sentence under 21
U.S.C. § 841(b). Smith maintains that under Moncrieffe, these prior convictions should
not qualify as “felony drug offenses” because a violation of Florida Statutes section 893.13
is not a categorical match to a federal drug offense, and because a violation of Florida
Statutes section 893.13 is not necessarily a felony. Rule 59(e) Motion at 2-4. In doing
so, Smith ignores that (a) a prior state conviction need not categorically match a federal
drug offense to qualify as a “felony drug offense” for purposes of 21 U.S.C. § 841(b), see
Order Dismissing Motion to Vacate at 12-13; see also 21 U.S.C. § 802(44), and (b) he

4 

never disputed, either at his sentencing hearing or on direct appeal, that his prior cocaine
convictions were felonies.
Smith also contends that the Court erred in finding that Descamps did not render
his Motion to Vacate timely under 28 U.S.C. § 2255(f)(3).2 Rule 59(e) Motion at 4-5.
Smith points to the Eleventh Circuit’s decision in Mays v. United States, 817 F.3d 728
(11th Cir. 2016), in which the court held that Descamps applies retroactively on collateral
review. Smith suggests that if a prisoner files a Motion to Vacate within a year of a
Supreme Court decision that is retroactively applicable on collateral review, then that is
sufficient to render a Motion to Vacate timely under § 2255(f)(3), even if the Supreme
Court decision did not initially recognize a new right. Smith contends that Dodd v. United
States, 545 U.S. 353 (2005), supports this construction of § 2255(f)(3). Dodd, however,
does not support Smith’s interpretation. Instead, it reinforces the Court’s conclusion that
a Supreme Court decision must both be retroactively applicable and initially recognize a
new right in order to trigger § 2255(f)(3). Dodd concerned the question of whether the
one-year statute of limitations set forth in § 2255(f)(3) begins to run from “the date on
which [the Supreme Court] ‘initially recognized' the right asserted in an applicant's § 2255
motion, or whether, instead, [from] the date on which the right is ‘made retroactiv[e].'”
Dodd, 545 U.S. at 354-55. The Supreme Court held that the limitations period begins to
run when the Supreme Court issues the decision initially recognizing the right asserted,
not when a court holds that the Supreme Court decision applies retroactively. Id. at 357.
The Supreme Court explained that the text of § 2255(f)(3)

2
Section 2255(f)(3) allows a prisoner to file a motion to vacate within one year of “the date
on which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.”
5 

limits [§ 2255(f)(3)'s] application to cases in which applicants are seeking to assert
rights “newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review.” § 2255, ¶ 6(3). That means that [§ 2255(f)(3)'s]
date—“the date on which the right asserted was initially recognized by the
Supreme Court”—does not apply at all if the conditions in the second clause—the
right “has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review”—have not been satisfied.
Dodd, 545 U.S. at 358 (emphases added). Thus, Dodd confirms what this Court said
about § 2255(f)(3): “[R]etroactivity alone is not sufficient to trigger § 2255(f)(3). Section
2255(f)(3) has two requirements: (1) the right invoked in the prisoner's § 2255 motion
must have been ‘initially recognized' or ‘newly recognized' by the Supreme Court, and (2)
the rule invoked in the § 2255 motion must have been made retroactively applicable.”
Order Dismissing Motion to Vacate at 14-15 (citing 28 U.S.C. § 2255(f)(3)). This Court
explained that because Descamps did not initially recognize a new right, it did not trigger
§ 2255(f)(3). Order Dismissing Motion to Vacate at 14 (citing Mays, 817 F.3d at 734;
Abney v. Warden, 621 F. App’x 580, 583-84 (11th Cir. 2015); King v. United States, 610
F. App’x, 825, 828-29 (11th Cir. 2015)). Because the text of § 2255(f)(3) requires a
prisoner to identify a Supreme Court case that both recognizes a new right and is
retroactively applicable on collateral review, the fact that Descamps did not recognize a
new right precludes the use of that case to trigger § 2255(f)(3)’s alternative statute of
limitations.
Finally, Smith argues that the Section 851 Notice was jurisdictionally defective
because neither the Section 851 Notice nor the Indictment identified which penalty
subsection of 21 U.S.C. § 841(b) applied. Rule 59(e) Motion at 6-8. This argument is a
variation of an argument Smith made in Ground Two of his Motion to Vacate: that the
Court lacked jurisdiction to convict and sentence him because the Indictment failed to

6 

allege the drug quantity or the applicable penalty subsection. See Motion to Vacate at
24-26. The Court rejected Smith’s argument that the Indictment was jurisdictionally
defective because jurisdictional grounds, if made in an untimely § 2255 motion, do not
avoid § 2255(f)’s statute of limitations. Order Dismissing Motion to Vacate at 16-17.
Moreover, the Court noted that the Indictment’s omission of the drug quantity or the
applicable penalty subsection did not render it jurisdictionally defective because it still
alleged a violation of a valid federal statute, which is all an indictment must do to invoke
a federal court’s subject matter jurisdiction. Id. at 16 n. 6. Smith has failed to point the
Court to a manifest error of law or fact that warrants revisiting this decision. Likewise, the
fact that the Section 851 Notice did not identify the drug quantity or applicable penalty
subsection does not warrant altering or amending the judgment under Rule 59(e).
Smith’s Rule 59(e) Motion is based partly on a misunderstanding of the Court’s
previous Order, and is mainly an attempt to reargue the Motion to Vacate. Because Smith
has not identified any newly discovered evidence or a manifest error of law or fact, the
Rule 59(e) Motion is due to be denied. Accordingly, it is hereby
ORDERED:
Petitioner Ruvel Alfred Smith’s “Petition for Reconsideration Based on
Misapplication of Applicable Law,” (Doc. 13) construed as a motion to alter or amend the
judgment under Rule 59(e), is DENIED.
DONE AND ORDERED at Jacksonville, Florida this 12th day of October, 2016.

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Lc 19
Copies:
Counsel of record
Pro se petitioner

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