Owens v. United States of America

Filing 48

ORDER granting Owens's six motions for leave to file a supplement to the Rule 52 and Rule 59 Motion(ECF Nos. 34-36, 38-40); denying Owens's Motion under Federal Rule of Civil Procedure 52(b) and Rule 59(e) (ECF No. 33); and denying Owens's motion for hearing (ECF No. 41) and motion to appoint counsel (ECF No. 44) as moot. Signed by Judge Samuel H. Mays, Jr on 2/5/2018. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

LESLEY OWENS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 13-cv-2139-SHM-cgc
No. 08-cr-20257-SHM-1

ORDER

Before the Court are nine motions by Petitioner Lesley
Owens: a July 18, 2016 Motion under Federal Rule of Civil
Procedure 52(b) and Rule 59(e) (“Rule 52 and Rule 59 Motion”)
(ECF No. 33), six motions for leave to file a supplement to the
Rule 52 and Rule 59 Motion, filed between July 29, 2016 and May
30, 2017 (ECF Nos. 34-36, 38-40), 1 a July 10, 2017 motion for
0F

hearing (ECF No. 41), and an October 23, 2017 motion to appoint
counsel (ECF No. 44).
For the following reasons, Owens’s six motions for leave
to file a supplement to Owens’s Rule 52 and Rule 59 Motion are

1

Owens has filed six documents supplementing his Rule 52 and Rule 59
Motion. (ECF Nos. 34-38, 38-40.) Those filings are styled as notices to
supplement, motions to supplement, or letters. They are construed as
motions for leave to supplement Owens’s Rule 52 and Rule 59 Motion.
Amendments should be granted freely when justice requires. Fed. R. Civ.
15(a)(2). For good cause shown, Owens’s motions for leave to file
supplemental arguments are GRANTED.

GRANTED, Owens’s Rule 52 and Rule 59 Motion is DENIED, and his
motions for hearing and to appoint counsel are DENIED as MOOT.
I.

Background
On December 4, 2007, a Federal Grand Jury in the Western

District of Tennessee returned an indictment charging Owens
with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g) (“Count One”).
1.) 2

(Indictment, Cr. ECF No.

Owens’s trial began on January 12, 2009.

1F

ECF No. 44.)
Count One.

(Minutes, Cr.

On January 15, 2009, a jury found Owens guilty on
(Jury Verdict, Cr. ECF No. 57.)

Robert Parris

(“Parris”) represented Owens at trial and sentencing.

(Parris

Aff., ECF No. 12-2.)
On March 18, 2009, the United States Probation Office
prepared a Presentence Investigation Report (“PSR”).
No. 14 at 1.)

(PSR, ECF

The PSR calculated Owens’s guideline sentencing

range pursuant to the 2008 edition of the United States
Sentencing Commission Guidelines Manual (“2008 U.S.S.G.”).
(Id. at 5.)

Owens’s total offense level was 33.

(Id.)

He

received a seven-level enhancement under 2008 U.S.S.G. § 4B1.4
because he was an Armed Career Criminal (“ACC”) under 18 U.S.C.
§ 924(e).

(Id. (citing 2008 U.S.S.G. § 4B1.4(b)(3)(B)).)

2

Record citations to “Cr. ECF No. ##” refer to the criminal action,
United States v. Owens, No. 08-cr-20257-SHM (W.D. Tenn.). Record citations
to “ECF No. ##” refer to this civil action.

2

Owens had five prior qualifying convictions: a 1991 conviction
for Robbery in violation of Tennessee law (the “1991 Robbery
Conviction”); a 1991 conviction for Aggravated Assault in
violation of Tennessee law (the “1991 Assault Conviction”); a
1996 conviction for Simple Robbery in violation of Tennessee
law (the “1996 Robbery Conviction”); a 1996 conviction for
Aggravated Assault in violation of Tennessee law (the “1996
Assault Conviction”); and a 1999 conviction for Reckless
Aggravated Assault in violation of Tennessee law (the 1999
“Assault Conviction”).

(Id. at 8-11.)

On June 19, 2009, the Court held a sentencing hearing.
(Minutes, Cr. ECF No. 84.)

Although Parris had filed

objections based on the age and factual accuracy of the 1991
Assault Conviction, Owens waived those objections during the
hearing.

(Sentencing Transcript, Cr. ECF No. 97 at 201.) 3
2F

Court sentenced Owens to 235 months in prison.

(Id. at 264.)

On June 23, 2009, Owens filed a Notice of Appeal.
of Appeal, Cr. ECF No. 82.)

The

(Notice

Andre C. Wharton (“Wharton”) was

appointed to represent Owens beginning on July 13, 2009.
(Wharton Aff., ECF No. 12-3.)

On January 31, 2012, the Sixth

Circuit affirmed Owens’s conviction.
No. 109.)
3

(Order of USCA, Cr. ECF

On June 21, 2012, Owens filed a petition for writ of

Unless otherwise noted, citations to the record refer to the PageID

number.

3

certiorari in the United States Supreme Court.
ECF No. 111.)

(Notice, Cr.

His petition was denied on October 2, 2012.

(Notice, Cr. ECF No. 112.)
On March 3, 2013, Owens timely filed a Motion to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody,
pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”).
Motion, ECF No. 1.)

(§ 2255

Owens argued that he had received

ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984).
On August 3, 2015, Owens filed a Motion for Leave to Amend
to have the Court consider whether his sentence should be
vacated under Johnson v. United States, 135 S. Ct. 2551 (2015)
(the “Johnson Motion”).

(Johnson Mot., ECF No. 26.)

On June 21, 2016, the Court denied Owens’s § 2255 Motion
and his Johnson Motion (“Order Denying § 2255 Motion”).
Denying § 2255 Mot., ECF No. 31.)

(Order

The Court decided that

Owens’s 1991 Assault Conviction, 1996 Robbery Conviction, and
1996 Assault Conviction were violent felonies under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and that
Owens was an armed career criminal.
entered on June 21, 2016.

(Id.)

(ECF No. 32.)

4

Judgment was

The government has not responded to any of Owens’s pending
motions.
II.

Legal Standard
A. Federal Rule of Civil Procedure 52(b)

Under Federal Rule of Civil Procedure 52(b), a “court may
amend its findings -- or make additional findings -- and may
amend [a] judgment accordingly.”
The primary purpose of Rule 52(b) is to enable the
appellate court to obtain a correct understanding of
the factual issues determined by the trial court as a
basis for the conclusions of law and the judgment
entered thereon.
A party who failed to prove his
strongest
case
is
not
entitled
to
a
second
opportunity to litigate a point, to present evidence
that was available but not previously offered, or to
advance new theories by moving to amend a particular
finding of fact or a conclusion of law.
9C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2582 (3d ed. 2017) (citations omitted).
B. Federal Rule of Civil Procedure 59
Under Federal Rule of Civil Procedure 59(e), a party may
file a motion to alter or amend an order if there is a clear
error of law, newly discovered evidence, an intervening change
in controlling law, or a need to prevent manifest injustice.
Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d
612, 615 (6th Cir. 2010).

It is improper to use the motion “to

relitigate old matters, or to raise arguments or present
5

evidence that could have been raised prior to the entry of
judgment.”

Exxon Shipping Co. v. Baker, 554 U.S. 471, 486 n.5

(2008) (citation omitted).
III. Analysis
A. Rule 52 Motion
1.

Presentence Investigation Report Findings

Owens argues that the Court should make additional
findings that his 1991 Assault Conviction arose from an
accidental rather than intentional shooting.
383.)

(ECF No. 33 at

Owens specifically seeks additional findings about the

PSR and the transcripts of his sentencing hearing.

(Id.)

The Court made clear at sentencing that it could not alter
or modify Owen’s underlying conviction for aggravated assault,
even if the facts supporting that charge might suggest the act
was accidental.

At sentencing, Owens stated “that’s what I was

saying that it was an accident and at the time . . . I didn’t
know anything about no law or nothing.

I just –- my attorney

at that time told me [to] . . . just sign the paper, man.”
(Sentencing Hr’g Tr., Cr. ECF No. 97 at 200.)

The Court

responded as follows:
[T]hat's exactly what I'm saying I can't consider
because I've got to go based on the -- I can't retry
your prior case from 1991.
I have what I have in
front of me is a conviction for aggravated assault
6

that I have to rely on in sentencing you. . . .
[T]here are three things, we can just cross out the
description and I won't consider the description. I
can go through the description and pick out those
parts that are accurate and those parts that aren't
accurate, or I can leave the description as it is,
that's really with where we are. Or Mr. French can
put on proof if he wants about what's accurate, but
then we are trying the case from 1991 again which I
don't think we can do.
The affidavit of complaint
doesn't solve the problem because what [Owens] is
challenging is the affidavit itself and its accuracy.
(Id. at 200-01.)

Owens then withdrew his objection and the

Court accepted the facts in the PSR as true.

(Id. at 201.)

The Court did not and could not rely on the factual
description in the PSR as the basis for its conclusions of law
in denying Owens’s § 2255 Motion.

Using “the factual

description of a prior conviction contained in a PSR to
determine if the prior conviction is a ‘crime of violence’ does
‘not adhere to the dictates of . . . Shepard.’”

United States

v. Wynn, 579 F.3d 567, 575–76 (6th Cir. 2009) (quoting United
States v. Bartee, 529 F.3d 357, 361 (6th Cir. 2008)).

Amending

the Court’s findings to include factual descriptions in the PSR
would not enable the appellate court to obtain a correct
understanding of the factual issues determined by the Court as
a basis for its conclusions of law and judgment.

Owens’s Rule

52 and Rule 59 Motion for additional findings about the PSR and
sentencing transcripts is DENIED.

7

2.

Trial Counsel’s Access to State Court
Documents

Owens contends that his trial counsel, Robert Parris, did
not decide that an objection in light of Begay v. United
States, 553 U.S. 137 (2008) was meritless based on a review of
state court documents.

(ECF No. 33 at 385.)

Owens points to

his appellate counsel’s, Andre C. Wharton, affidavit to argue
that Parris did not have the state court documents at the
sentencing hearing to decide whether an objection in light of
Begay was meritless.

(Id.)

The Court has previously found that Parris “did not object
under Begay at sentencing because he believed, as he does now,
that the objection was without merit based on state court
documents showing that Owens had pled guilty to intentional
conduct.”

(Order Denying § 2255 Mot., ECF No. 31 at 365.)

Regardless of why Parris did not object, the Court concluded
that Owens had failed to show he was prejudiced by Parris’s
failure to raise arguments under Begay.

(ECF No. 31 at 367.)

The Court did not rely on whether Parris had decided that an
objection in light of Begay was meritless based on a review of
state court documents.
When a court determines whether a crime of conviction is a
violent felony, it does not consider the defendant's actual
conduct (e.g., whether conduct was reckless or intentional).
8

Courts focus on the elements of the crime of conviction.

See,

e.g., Johnson, 135 S. Ct. at 2557; Taylor v. United States, 495
U.S. 575, 599-602 (1990).
was sentenced.

That rule was in place when Owens

An argument that Owens's 1991 Assault

Conviction was not a violent felony because Owens's actual
conduct was merely reckless would not have prevailed because
the state court documents support a finding that the crime of
conviction was for intentional aggravated assault.

To the

extent Owens argues that a crime of conviction cannot be a
violent felony if a defendant is allowed to commit it
recklessly, his argument fails.

As discussed below, the Sixth

Circuit has held that even reckless aggravated assault is a
violent felony under the ACCA.

(See Section V.B.2 infra.)

Amending the Court’s findings to state that Parris did not
have the state court documents at sentencing would not enable
the appellate court to obtain a correct understanding of the
factual issues determined by the Court.

Owens’s Rule 52 and

Rule 59 Motion for those additional findings is DENIED.
3.

1991 Assault Conviction Plea Agreement

Owens initially asserted that the 1991 Assault Conviction
Plea Agreement he attached to his § 2255 Motion, which deviated
from the government’s copy in that it indicated the offense was
for reckless aggravated assault rather than aggravated assault,
9

was the copy provided to Owens by his state trial attorney,
Samuel L. Perkins.

(ECF No. 33 at 386.)

Owens later asserted

that Perkins had unintentionally and mistakenly left blank on
his 1991 Assault Conviction plea agreement form that Owens
meant to plead guilty to reckless aggravated assault.

(ECF No.

41 at 493-94.)
The Court has previously decided that, “[b]ecause Owens
has attached a new copy of the plea agreement and makes no
argument that his initial copy is correct, the Court will rely
on the copy that recites only ‘aggravated assault.’”
31 at 370 n.4.)

(ECF No.

Owens’s recent filings appear to concede that

the true plea agreement did not include ‘reckless’ because of
Perkins’s alleged error.

(See ECF No. 41 at 493-94.)

There is no basis for the Court to amend its findings that
the plea agreement that recites only “aggravated assault” is
the true copy.

Owens’s Rule 52 and Rule 59 Motion on that

ground is DENIED.
4.

1991 Assault Conviction Plea Colloquy

Owens contends that the Court should make additional
findings under Rule 52 that Owens never admitted intentional
conduct at the plea colloquy.

(ECF No. 33 at 389.)

The Court

has previously concluded that, based on the plea colloquy,

10

“Owens necessarily admitted intentionally causing physical
injury.”

(Order Denying § 2255 Mot., ECF No. 31 at 372.)

Owens’s attempt to relitigate that issue is precluded under
Rule 52. Owens’s Rule 52 and Rule 59 Motion on that ground is
DENIED.
5.

Supplemental Reply Brief to § 2255 Motion

Owens argues that the Court failed to address the merits
of his Supplemental Reply Brief (ECF No. 24) before granting
his motion for leave to file the supplemental reply brief.
(ECF No. 33 at 400.)
A motion for leave to file or amend is controlled by
Federal Rule of Civil Procedure 15.

Leave to amend should be

given freely when justice requires.

Fed. R. Civ. P. 15(a)(2).

The merits of the amendment need not be analyzed to grant leave
when justice requires.

Any new allegations are addressed and

resolved after leave to file or amend has been granted.
Owens’s Rule 52 and Rule 59 Motion for additional findings
addressing the merits of his supplemental reply is DENIED.
B. Rule 59
1.

Controlling Case Law

Owens argues that the Court erred as a matter of law when
it failed to analyze controlling precedent, specifically,
11

United States v. Kappell, 418 F.3d 550 (6th Cir. 2005), United
States v. Amos, 496 F. App’x 517 (6th Cir. 2012), United States
v. Castro-Martinez, 624 F. App’x 357 (6th Cir. 2015) vacated
and remanded, Castro-Martinez v. United States, 136 S.Ct. 2541
(2016), Shepard v. United States, 544 U.S. 13 (2005), Leocal v.
Ashcroft, 543 U.S. 1 (2004), and Begay, 553 U.S. at 137.
In Kappell, the Sixth Circuit held that a state criminal
complaint, a transcript of the state plea proceedings, and the
defendant’s acceptance during those proceedings of the factual
statements in the complaint were permissible Shepard documents.
418 F.3d at 560.

Here, the Court considered the transcript of

the state plea proceedings, the criminal complaint, and Owens’s
acceptance of the factual statements as recited by the
prosecution.
72.)

(Order Denying § 2255 Mot., ECF No. 31 at 371-

The Court did not err.
In Amos, the Sixth Circuit held that a probable-cause

affidavit is also a proper Shepard document.
523.

494 F. App’x at

Owens offers no probable-cause affidavit or suggests that

there is one for his 1991 Assault Conviction.
In United States v. Castro-Martinez, the Sixth Circuit
concluded that “the statement of facts at the state plea
hearing, in conjunction with the state court's statement that
Defendant was charged with breaking into a home, confirms that
12

Defendant was convicted of burglarizing a dwelling” although
“[t]he state court indictment does not specify whether
Defendant entered the house or the shed. . . .”
at 362-63.

624 F. App’x

The case was later vacated and remanded on other

grounds by the Supreme Court.
States, 136 S.Ct. at 2541.

Castro-Martinez v. United

Owens’s 1991 Assault Conviction

indictment states that Owens “did unlawfully and intentionally
cause serious bodily injury . . . in violation of T.C.A. 39-13102.”

(ECF No. 11-3 at 131 (emphasis added).)

The affidavit

of complaint also states the offense was for aggravated
assault, but does not explicitly refer to intentional or
reckless conduct.

(Id. at 133.)

It states that Owens

allegedly shot the victim while attempting to kiss her.
at 133-34.)

(Id.

The plea agreement states the offense is

aggravated assault and does not refer to intentional or
reckless conduct.

(Id. at 135.)

The plea colloquy

demonstrates that Owens heard the indictment language, which
explicitly references intentional conduct.

When asked if he

understood the charge in the indictment, Owens said that he
did.

(1991 Plea Colloquy, ECF No. 23-2 at 301.)

Owens

voluntarily pled guilty to the charge in the indictment.

(Id.)

Notwithstanding the lack of reference to intentional or
reckless conduct in the affidavit of complaint and the plea
agreement, the indictment and plea colloquy make clear that
13

Owens pled guilty to and was convicted of intentional
aggravated assault.
In Leocal, the Supreme Court addressed the “crime of
violence” provision at 18 U.S.C. § 16, which uses language
identical to the elements clause of the “violent felony”
definition in 18 U.S.C. § 924(e)(2)(B)(i).

In Leocal the

defendant was convicted under a Florida statute criminalizing
driving under the influence of alcohol (DUI) and causing
serious bodily injury that did not have a mens rea requirement.
The government argued that 18 U.S.C. § 16 does not require a
predicate offense to have a mens rea requirement, and that the
DUI offense was therefore a crime of violence under the federal
statute.

543 U.S. at 9.

The court held, however, that the

elements clause of 18 U.S.C. § 16 “most naturally suggests a
higher degree of intent than negligent or merely accidental
conduct.”

Id.

The court emphasized that the word “use” in the

elements clause connotes “active employment.”

Id.

Thus, by

“giv[ing] words their ‘ordinary or natural’” meaning, the court
reasoned that an offense qualifying as a “crime of violence”
must require that the defendant acted more than merely
negligently in committing that offense.
United States, 508 U.S. 223, 228 (1993)).

Id. (quoting Smith v.

14

Here, the Court determined that a conviction under
Tennessee’s aggravated assault statute was possible based on
reckless or intentional conduct.
ECF No. 31 at 369-70.)

(Order Denying § 2255 Mot.,

An intentional aggravated assault under

the statute would qualify as a “crime of violence” under
Leocal.
In Shepard, the Supreme Court set out what is known as the
modified categorical approach, which permits courts to review
certain documents underlying the conviction to determine which
of a statute’s alternative elements formed the bases of the
defendant’s conviction.

544 U.S. 13, 26.

The Court determined

through permissible Shepard documents that Owens admitted that
intentional conduct formed the bases for his 1991 Assault
Conviction.

(Order Denying § 2255 Mot., ECF No. 31 at 370-72.)

Johnson, 135 S.Ct. at 2563, abrogated Begay, 553 U.S. at
137, voiding for vagueness the phrase “otherwise involves
conduct that presents a serious potential risk of physical
injury to another,” known as § 922(e)(2)(B)(ii)'s “residual
clause.”

Owens’s aggravated assault did not fall under the

residual clause.

(Order Denying § 2255 Mot., ECF No. 31 at

376-77.)
The Court properly analyzed Owens’s § 2255 Motion in
accordance with the above precedent.
15

There was no clear error

of law.

Owens’s Rule 52 and Rule 59 Motion on that ground is

DENIED.
2.

Mathis Claim

Owens argues that his Rule 52 and Rule 59 Motion should be
granted based on Mathis v. United States, 136 S. Ct. 2243
(2016).

(ECF No. 36; ECF No. 41 at 492-93.)

He argues that he

is entitled to relief because the 1991 Assault Conviction plea
agreement provides no factual details and because the plea
agreement would have indicated he was guilty of recklessness.
(ECF No. 41 at 492-95.)
Owens cites “newly discovered evidence” that his state
trial attorney, Perkins, unintentionally and mistakenly left
blank on his 1991 Assault Conviction plea agreement form that
Owens meant to plead guilty to reckless aggravated assault.
(Id. at 493-94.)

Owens provides telephone records of calls

between himself and Perkins.

(ECF No. 41-2; ECF No. 41-3.)

Owens also provides a copy of the 1991 Assault Conviction plea
agreement.

(ECF No. 41-1.)

That copy states the offense is

for aggravated assault, and does not include reference to
recklessness, unlike the copy initially attached to Owens’s
§ 2255 Motion.

(Compare ECF No. 1-5 with ECF No. 41-1.)

This

“new evidence” does not support Owens’s Rule 52 and Rule 59
Motion.

Owens’s unsupported allegations suggest, at most, an
16

argument for ineffective assistance of trial counsel for
Owens’s 1991 Assault Conviction.

That issue is not properly

before the Court.
Mathis also does not support Owens’s Rule 52 and Rule 59
Motion.

Owens did not cite Mathis in his § 2255 Motion.

Owens’s claim for relief under Mathis is a new argument that is
not properly before the Court, because Owens has not received
certification under § 2255(h)(2) for a second or successive
motion to vacate based on Mathis.

Section 2255(h)(2) provides

that a second or successive motion to vacate “must be certified
as provided in section 2244 by a panel of the appropriate court
of appeals to contain . . . (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”

Section

2244(b)(2)(A) provides that a claim presented in a second or
successive petition must be dismissed unless “the claim relies
on a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.” 4
3F

Even if Owens’s Mathis claim were properly before the
Court, and even if the Court found Owens was convicted of

4

The Sixth Circuit has held that Mathis did not announce a new rule
of constitutional law, made retroactive to cases on collateral review. In
re Conzelmann, 872 F.3d 375, 377 (6th Cir. 2017).

17

reckless aggravated assault, binding Sixth Circuit precedent
holds that reckless aggravated assault in violation of Tenn.
Code Ann. § 39-13-102(a)(1)(B) is a violent felony under the
ACCA’s use-of-force clause.

United States v. Verwiebe, 874

F.3d 258, 2017 WL 4700642, at *2 (6th Cir. Oct. 20, 2017)
(finding a crime that requires only recklessness can be a crime
of violence under U.S.S.G. § 4B1.2(a)); United States v.
Glover, 681 F. App’x 432 (6th Cir. Mar. 3, 2017) (“Whether a
conviction is a ‘crime of violence’ in § 4B1.2(a) of the
Sentencing Guidelines is subject to the same analysis as
whether a conviction is a ‘violent felony’ under the ACCA.”);
Drake v. United States, No. 3:16-CV-01427, 2017 WL 4805204, at
*6 (M.D. Tenn. Oct. 24, 2017) (finding defendant’s two
Tennessee aggravated assault convictions qualify as “violent
felonies” without regard to the residual clause invalidated by
Johnson) (citing Verwiebe). 5
4F

Owens’s Rule 52 and Rule 59 Motion is DENIED.
C. Motion for Hearing and to Appoint Counsel
Because each ground in Owens’s Rule 52 and Rule 59 Motion
has been denied, Owens’s motions for hearing and to appoint
counsel are DENIED as MOOT.
5

In a recent published opinion, the Sixth Circuit called into
question Verwiebe’s holding, but recognized it as binding authority.
United States v. Harper, 875 F.3d 329, 330 (6th Cir. 2017).

18

IV.

Conclusion

For the foregoing reasons, Owens’s six motions for leave
to file a supplement to Owens’s Rule 52 and Rule 59 Motion are
GRANTED, Owens’s Rule 52 and Rule 59 Motion is DENIED, and his
motions for hearing and to appoint counsel are DENIED as MOOT.

So ordered this 5th day of February, 2018.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

19