Roberson v. United States Of America

Filing 15

ORDER denying 11 Motion to Alter Judgment and Motion to Amend/Correct; denying as moot 13 Motion to Re-file 2255 and Motion to Appoint Counsel. Signed by Judge J. Randal Hall on 07/20/2016. (thb)

IN THE UNITED

STATES DISTRICT COURT

FOR THE

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

BOBBY LEE

ROBERSON

*
•

Petitioner,

*
*

*

vs.
UNITED STATES OF AMERICA,

CV 114-140

(Formerly CR 109-139)

*
•

Respondent.

*

ORDER

On

May

entered

a

4,

2015,

Report

the

and

United

States

Recommendation

respecting

Bobby Lee Roberson's motion to vacate,
his

sentence under 28

U.S.C.

Magistrate

Judge

Petitioner

set aside, or correct

§ 2255.

Through his

§ 2255

motion, Roberson challenged his designation as an armed career

criminal under 18 U.S.C.

burglary convictions

were

§ 924(e),

not

arguing that his prior

qualifying violent

under the Armed Career Criminal Act ("ACCA").

felonies

The Magistrate

Judge recommended dismissal of the § 2255 motion as untimely,
and even

if

not

time-barred,

the motion was

without merit

because the prior burglary convictions were properly counted

as

predicate

offenses

Recommendation,

On May 19,
Report

Doc.

under

the

ACCA.

(See

Report

and

5.)

2015,

Roberson filed an objection to the

and Recommendation in which he asks

the Court

to

postpone its final decision on his § 2255 motion until after

the United States
States,

case

135 S.

had

been

Supreme Court

Ct.

2551

decided Johnson v.

(2015).

argued .but

not

At that time,

decided,

and

United

the Johnson

this

Court

was

unwilling to presume that the decision would be favorable to
Roberson's case; therefore, this Court dismissed Roberson's §

2255 petition on June 18, 2015.
On June 26,

2 015,

(Doc. 9.)

the Johnson decision was handed down,

wherein the United States Supreme Court found the "residual
clause" of the ACCA,

18 U.S.C.

§ 924(e) (2) (B) (ii) , to be void

for vagueness and a violation of the Constitution's guarantee
of due process.

Id. at 2563.

On July 20,

2015,

Roberson

filed a timely motion to alter or amend the judgment in this
case under Federal Rule of Civil Procedure 59(e).1

Although Rule 59(e) does not set forth the grounds for
relief, district courts in this Circuit have identified three
that merit

reconsideration of an order:

change

controlling

in

evidence; and (3)

law;

(2)

the

(1)

an intervening

availability

of

new

the need to correct clear error or prevent

manifest injustice. See, e.g., Ctr. for Biological Diversity
v.

Hamilton,

Sussman v.

385 F.

Salem,

(M.D. Ga. 1994).

Supp.

2d 1330,

Saxon & Nielsen,

1337

P.A.,

(N.D.

Ga. 2005);

153 F.R.D.

689,

694

Here, Roberson invokes the Johnson decision

1 Because Roberson deposited his Rule 59(e) motion into

the prison mailbox on July 14,

2015,

it was timely filed

within 28 days of the Court's judgment on June 18, 2015.

as

an

intervening

change

burglary convictions

in

the

law,

claiming

fall under the residual

that

clause of

his
the

ACCA and therefore cannot be used to enhance his sentence.

Upon review of the merits of Roberson's motion to alter

or amend the judgment, the Court concludes that his reliance

on

Johnson

is

misplaced.

The

ACCA

provides

a

sentence

enhancement for a defendant who has three prior convictions
for

a

violent

defines

felony.

''violent

18

felony"

U.S.C.
as

§

924(e)(1).

any

crime

The

punishable

ACCA
by

imprisonment for a term exceeding one year that (1) "has as an

element the use, attempted use, or threatened use of physical
force against the person of another"

clause");

(2)

is

a

burglary,

(known as the "elements

arson,

or

extortion,

[or]

involves use of explosives" (known as the "enumerated offenses
clause"); or (3) "otherwise involves conduct that presents a

serious potential risk of physical injury to another"
as the

"residual clause").

18

U.S.C.

§ 924(e)(2)(B).

(known
The

Johnson decision struck down the residual clause of the ACCA,
not the other two clauses.

In the Report and Recommendation of May 4,

2015, the

Magistrate Judge carefully explained that Roberson's prior
burglary

convictions

fall under

the

"enumerated

offenses

clause."

As explained, this conclusion follows from the fact

that Georgia has a divisible burglary statute and Roberson's

burglaries

involved

"buildings,"

qualifying

as

"generic

burglary"

under the ACCA.

doc. 5, at 9-11.)

(See Report and Recommendation,

As stated in the Report and Recommendation,

and equally apropos here,

"[t]he conclusion that the prior

Georgia burglary offenses qualify as predicate ACCA burglary
offenses should come as no surprise to

[Roberson] ."

(See id.

at 11.)

In short, because Roberson was designated as an armed

career

criminal

for

three

enumerated

offenses

(i.e.,

burglaries), Johnson is completely irrelevant to his claims.

As

such,

he

is

not

entitled

to

relief

from

the

judgment

entered against him in this § 2255 case.

Upon the foregoing, Roberson's motion to alter or amend

judgment under Rule

59(e)

(doc.

11)

is DENIED.

Further,

Roberson's "Motion Requesting to Re-file 2255" and the request

for appointment of counsel

(doc.

13)

therein are DENIED AS

MOOT.2

ORDER ENTERED at Augusta, Georgia, this £^(9jaay of
July,

2016.

HONa^ABLE>7> RANDAL HALL

UNITED/STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

2

The Court notes that the Eleventh Circuit recently

dismissed

Roberson's

application

to

file

a

successive § 2255 motion because it was premature.

Bobbv Lee Roberson,

Case No.

16-13743

(11th Cir.

second

or

See In re:

July 11,

2016) . The Eleventh Circuit explained that Roberson's initial
§ 2255 motion, the instant one, had not been concluded because
this Court had not ruled upon his Rule 59(e) motion. Id.