Rogers v. United States of America
Filing
12
ORDER denying 8 Motion to Alter Judgment; denying 9 Motion to Alter Judgment or in the alternative for Reconsideration ; granting 10 Motion for Leave to File; denying as moot 11 Motion to Compel. Signed by Judge James D. Whittemore on 11/12/2013. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSEPH MORGAN ROGERS, JR.,
Petitioner,
CASE NO. 8:10-CV-1873-T-27EAJ
CRIM. CASE NO. 8:07-CR-91-T-27EAJ
v.
UNITED STATES OF AMERICA,
Respondent.
------------------------~/
ORDER
Before the Court is Petitioner's Motion to Alter or Amend Judgement [sic] or in the
Alternative, Motion for Reconsideration (CV Dkt. 9), in which he seeks reconsideration ofthe denial
of his§ 2255 motion to vacate. The motion is DENIED.
BACKGROUND
Petitioner pleaded guilty to being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. §§ 922(g)(l) and 924(e) (CR Dkts. 1, 16, 19, 20). On September 24, 2007,
he was sentenced as an armed career criminal to 188 months in prison, followed by 5 years of
supervised release (CR Dkt. 23). Petitioner did not appeal. He signed his Section 2255 motion on
August 17, 2010 (CR Dkt. 24; CV Dkt. 1). That motion was denied as time-barred (CV Dkt. 6).
Petitioner's motion is filed pursuant to Rule 59(e), Federal Rules of Civil Procedure.
"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 (11 1h Cir. 2007) (quoting In re
Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999)). Petitioner does not allege newly-discovered
evidence. Rather, he argues that the Court erred in dismissing his§ 2255 motion as time-barred
because: 1) the Government waived any challenge to the timeliness of the 2255 motion by
failing to plead the statute oflimitations as an affirmative defense; 2) it was timely filed within
one year ofthe decision in Johnson v. United States, 130 S.Ct. 1265 (2010), which applies
retroactively to cases on collateral review; and 3) he is actually innocent of the armed career
criminal enhancement, and his actual innocence serves to overcome the procedural bar caused by
the untimely filing of his 2255 motion.
DISCUSSION
As to Petitioner's first contention, the statute of limitations is generally an affirmative
defense, which is forfeited if not raised. See Rule 8(c), Fed. R. Civ. P. ("In responding to a
pleading, a party must affirmatively state any avoidance or affirmative defense, including..
.statute of limitations...."). However, "a court may consider a statute of limitations or other
threshold bar the State failed to raise in answering a habeas petition." Wood v. Milyard, 132 S.
Ct. 1826, 1830 (2012) (citing Granberry v. Greer, 481 U.S. 129, 134 (1987)(exhaustion
defense), and Day v. McDonough, 547 U.S. 198,202 (2006) (statute of limitations defense)). A
district court, however, is not at liberty to consider the timeliness of a 2255 motion sua sponte
where the government "is aware of a limitations defense," but deliberately waives it. Cf Wood,
132 S.Ct. at 1830 (citing Day, 547 U.S. at 202, 210 n. 11).
Here, there is no indication that the government deliberately waived the statute of
limitations defense. Although its Response stated, in pertinent part, that "Rogers filed this timely
Section 2255 motion" (CV Dkt. 4 at p. 2), that statement indicates, at most, a mistaken belief
2
that the motion was timely, rather than a deliberate waiver of the limitation defense. 1 As a result,
the government did not waive the defense, but rather forfeited it. See Wood, 132 S. Ct. at 1832
n.4 (a forfeited defense is "one that a party has merely failed to preserve"); Ellis v. Bowersox,
2013 U.S. Dist. LEXIS 51175, at *27 (E.D. Mo. Mar. 1, 2013) ("A 'forfeited' defense 'is one
that a party has merely failed to preserve,' rather than one a party waives by 'knowingly and
intelligently relinquish[ing]' it." (quoting Wood, 132 S. Ct. at 1832 n.4). And a federal court has
the discretion to raise a forfeited defense on its own initiative. /d. at 1834. Accordingly, there
was no error in considering the statute of limitations bar sua sponte.
As to Petitioner's second contention, no Supreme Court or Eleventh Circuit case has
recognized a new right under Johnson which is retroactively applicable. Contrary to Petitioner's
assertion, Rozier v. United States did not hold that Johnson's holding is retroactive. 2 Rather, in
Rozier, the Eleventh Circuit assumed, without deciding, that Johnson was retroactive. !d., 701
F.3d at 684 ("The government concedes, and we take it as a given, that the Supreme Court's
Johnson decision is retroactively applicable."). In the absence of Supreme Court or Eleventh
Circuit precedent holding that Johnson is retroactive, the failure to apply Johnson retroactively
was not manifest error. See Oto v. Metropolitan Life Insurance Co., 224 F.3d 601, 606 (7th Cir.
2000) (Manifest error of law is "the·wholesale disregard, misapplication, or failure to recognize
controlling precedent."). Moreover, even if Johnson is retroactive, its holding does not benefit
1In contrast, the respondent in Wood indicated that the statute of limitations defense "would be
supportable, but we won't make the challenge here." Wood, 132 S. Ct. at 1834. See also United States v. Fisher,
2013 U.S. Dist. LEXIS 19482, at *5 (N.D. Ind. Feb. 13, 2013) (government deliberately waived statute of limitations
defense where it stated "[t]o the extent that this motion may have been brought past the one year deadline for
motions under Section 2255, the government is knowingly and intentionally relinquishing any statute of limitations
defense under 28 U.S.C. Section 2255.").
2
Rozier v. United States, 701 F.3d 681 (lith Cir. 2012), cert. denied, 133 S.Ct. 1740 (2013)
3
Petitioner.
Johnson held that, under Florida law, a conviction for battery on a law enforcement
officer is not categorically a "violent felony" under the Armed Career Criminal Act ("ACCA").
However, Petitioner was sentenced as an armed career criminal because of his prior convictions
for aggravated battery and aggravated assault. 3 Johnson does not, therefore, control whether
Petitioner was correctly sentenced as an armed career offender. Therefore, Petitioner's one-year
statute of limitations period would not have run from the date Johnson was decided.
As to Petitioner's third contention, since there is no clear precedent from the Supreme
Court or Eleventh Circuit as to whether the actual innocence exception applies in the context of
ACCA enhancements,4 Petitioner cannot show manifest error in the conclusion that the actual
innocence exception to the time-bar is inapplicable to his case. Notwithstanding, even of the
actual innocence exception applies, Petitioner has not demonstrated actual innocence with
respect to his armed career criminal status.
Petitioner contends that his convictions for aggravated assault and aggravated battery do
not qualify as violent felonies under the ACCA. Petitioner is incorrect. His aggravated assault
conviction "categorically qualifies as a violent felony under the ACCA[.]" United States v.
Johnson, 515 Fed. Appx. 844, 848 (11th Cir. 2013) (citing Turner v. Warden Coleman FCI, 709
3In addition to his convictions for aggravated battery and aggravated assault, Petitioner has a prior
conviction for conspiracy to distribute methamphetamine (PSR ~~33, 41, 43). Petitioner did not contest the inclusion
of the conspiracy conviction in the application of the armed career criminal enhancement.
4 Contrary to Petitioner's assertion, King v. United States, 419 Fed. Appx. 927 (lith Cir. 201 I) does not
hold that the actual innocence exception to the procedural default rule applies to a non-capital sentence under the
ACCA. Rather, "[i]n light of the Government's concession on appeal that the actual-innocence exception should be
available to petitioners raising procedurally defaulted claims challenging non-capital sentences enhanced under the
ACCA," the Eleventh Circuit remanded the "case to the district court for a determination of whether King is actually
innocent of the ACCA sentence enhancement." Jd. at 928.
4
F.3d 1328 (11th Cir. 2013)). And, although the categorical approach does not resolve whether
the aggravated battery constitutes a violent felony, see United States v. Barraza-Ramos, 550 F.3d
1246, 1247 (lOth Cir. 2008) (Florida conviction for "felony aggravated battery is not
categorically a crime of violence"), it is clear that the aggravated battery conviction is a violent
felony under the modified categorical approach. 5 Petitioner's PSI reveals that his aggravated
battery conviction resulted from Petitioner "severely" beating the victim's face, cutting his face
and leg, and stabbing him in the chest.
PSR~33.
CERTIFICATE OF APPEALABILITY
The issuance or denial of a certificate of appealability under Rule 11 (a), Rules Governing
Section 2255 Proceedings, is applicable to the denial of a Rule 59(e) motion in § 2255 cases. Cf
Perez v. Sec y, Fla. Dep 't ofCorr., 711 F.3d 1263 (11th Cir. 2013). See also United States v.
Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005) (certificate of appealability required to appeal
denial of Rule 59(e) motion that "sought ultimately to resurrect the denial of his earlier§ 2255
motion..."). A certificate of appealability may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." It must be shown that reasonable jurists would
5The modified categorical approach is "applied where some, but not all, of the violations of a particular
statute will involve the requisite violence." United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012) (citing
United States v. Pantle, 637 F.3d 1172, 1175 (11th Cir. 2011)). Here, the Court may apply the modified categorical
approach to determine whether Petitioner's Florida conviction for aggravated battery qualifies as a violent felony
under the ACCA. See United States v. Diaz-Calderone, 7I6 F.3d 1345, 1347 (lith Cir. 2013). The modified
categorical approach permits the Court ''to determine which statutory phrase was the basis for the conviction by
consulting the trial record--including charging documents, plea agreements, transcripts of plea colloquies, findings of
fact and conclusions oflaw from a bench trial, and jury instructions and verdict forms." Johnson, 130 S. Ct. at 1273.
"[I]f a PSI prepared for the district court includes a description of the facts underlying the state-court offense, and the
description is not challenged by the defendant, the facts contained therein may be considered by the district court...
." Pickett v. United States, 2011 U.S. Dist. LEXIS 36366, at *14-15 (S.D. Fla. Feb. 28, 2011) (citing United States
v. Wade, 458 F.3d 1273, 1278 (lith Cir. 2006); 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)). Petitioner did not challenge the PSI's description
of the facts pertaining to the aggravated battery. Rather, he argued that the description of the facts in the PSI cannot
be used in the modified categorical inquiry (see CV Dkt. 5 at p. 3).
5
find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks
to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir 2001).
A certificate of appealability is GRANTED on the single issue of whether the government
deliberately waived the statute of limitations defense. Reasonable jurists could debate the
conclusion that the government forfeited, but did not waive, that defense.
ACCORDINGLY,
1. Petitioner's Motion to Compel a Ruling Based on Ripeness (CV Dkt. 11) is DENIED
as moot.
2. Petitioner's Motion Seeking Leave of Court to File Supplemental Authority in
Proceeding Brought Under 28 USC § 2255(f)(3) (CV Dkt. 10) is GRANTED to the extent that
Petitioner's supplemental authority and argument has been considered.
3. Petitioner's unsigned Motion to Alter or Amend Judgement or in the Alternative,·
Motion for Reconsideration (CV Dkt. 8) is DENIED because it is unsigned and moot.6
4. Petitioner's signed Motion to Alter or Amend Judgement or in the Alternative, Motion
for Reconsideration (CV Dkt. 9) is DENIED.
5. Petitioner is GRANTED a certificate of appealability as described above.
"1'Z.
DONE AND ORDERED this _i_2_day of
~~D.
WHITTEMORE
ED STATES DISTRICT JUDGE
Copy to: All Parties/Counsel of Record
6Fed.
R. Civ. P. ll(a) ("Every...written motion... must be signed by... a party personally if the party is
unrepresented ...."
6
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