Opinion
Case No. 5:13-CR-3
08-26-2016
UNITED STATES OF AMERICA, Plaintiff, v. DELMAR H. BARCLAY, Defendant.
OPINION & ORDER
[Resolving Doc. No. 59] :
Pro se Defendant Delmar Barclay brings this motion for reconsideration under Federal Rule of Civil Procedure 59(e). He says that new Sixth Circuit precedent indicates that this Court improperly denied his § 2255 motion seeking relief through habeas corpus.
Doc. 59 at 1.
Id. at 2-4.
For the following reasons, the Court DENIES Barclay's petition.
I. Background
On January 3, 2013, the United States indicted Defendant Delmar H. Barclay for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Barclay pled guilty and was sentenced under the Armed Career Criminals Act ("ACCA"). Under ACCA, a defendant faces a fifteen-year mandatory minimum sentence if he is convicted of being a felon in possession of a firearm and has three or more prior convictions for a violent felony or serious drug offense. Barclay's pre-sentence report identified six possible predicate offenses.
Doc. 1.
Doc. 27 at ¶¶ 41-61.
This Court found that Barclay qualified as an armed career criminal under the ACCA. This Court did not identify the specific predicate offenses, but rather relied on the "large number of crimes of violence or drug trafficking offenses."
Doc. 42 at 3.
The Supreme Court's recent opinion in Johnson v. United States has thrown into question whether certain prior felonies can be counted as "violent felonies" for the purposes of the ACCA. The Supreme Court has held that Johnson applies retroactively to habeas claims challenging ACCA sentences.
___ U.S. ___, 135 S.Ct. 2551 (2015).
Welch v . United States, ___ U.S. ___, 136 S.Ct. 1257 (2016).
On November 19, 2015, Barclay filed a § 2255 motion seeking relief through habeas corpus. He argued that after Johnson he no longer had three ACCA predicate offenses.
Doc 46.
This Court denied Barclay's motion. This Court determined that Barclay had at least three remaining ACCA predicate convictions: his 2005 trafficking conviction, his 1998 aggravated assault conviction, and his 1986 aggravated burglary conviction. These convictions were sufficient to support his 2013 sentence under the ACCA.
Doc. 57.
Id. at 4-5.
On July 21, 2016, Defendant Barclay filed this motion for reconsideration under Federal Rule of Civil Procedure 59(e). Barclay says that the Sixth Circuit recently concluded that Ohio's aggravated burglary statute does not qualify as an ACCA predicate offense. Consequently, Barclay asks this Court to reconsider whether his aggravated burglary conviction qualifies as an ACCA predicate offense.
Doc. 59.
Id. Barclay points to United States v. Fountain, 643 F. App'x. 543, 547-48 (6th Cir. 2016) (unreported).
II. Analysis
Defendant Barclay moves this Court to alter or amend its judgement denying his § 2255 motion. Under Rule 59(e), a court may grant a motion to amend or alter its judgment if there is: (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) manifest injustice. But, a reconsideration motion is not an opportunity to re-litigate previously decided matters or present the case under new theories. Such a motion is extraordinary and sparingly granted.
Gencorp , Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.1999).
See Sault Ste . Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir.1998).
P laskon Elec . Materials, Inc. v. Allied-Signal, Inc., 904 F. Supp. 644, 669 (N.D. Ohio 1995).
Barclay says that the Sixth Circuit's decision in United States v. Fountain changed controlling law. He argues that the Fountain court determined that convictions under Ohio's aggravated burglary statute cannot qualify as ACCA predicate offenses. This argument loses.
Doc. 59.
In Fountain, the Sixth Circuit stated that a district court had "correctly labeled Ohio's aggravated-burglary statute non-generic, i.e., broader than generic burglary." Critically, the court then noted that "[b]ecause Ohio's statute is 'divisible'—in that it sets out one or more elements in the alternative—the court could have then employed a 'modified categorical approach' . . . to determine which alternative necessarily formed the basis of Fountain's prior conviction."
Fountain, 643 F. App'x at 547.
Id.
The modified categorical approach requires courts to determine the exact subsection of a divisible statute under which a defendant was convicted. If that subsection defines a crime more broadly than the generic definition of that crime, then the conviction cannot qualify as an ACCA predicate offense.
Descamps v . United States, ___ U.S. ___, 133 S. Ct. 2276, 2281 (2013).
Id.
Defendant Barclay was convicted of "[a]ggravated burglary, Ohio Revised Code Section 2911.11(A)(3)." When it denied Barclay's § 2255 motion, this Court completed a modified categorical analysis of Ohio's aggravated burglary statute. This Court concluded that subsection (A)(3) of this statute is not overly broad. As a result, Barclay's aggravated burglary conviction qualifies as an ACCA predicate offense.
Doc. 53-1.
Doc 57 at 13-18.
Id. at 18.
No conflict exists between Fountain and this Court's previous denial of Barclay's § 2255 motion. This Court followed the Sixth Circuit's direction by "employ[ing] a 'modified categorical approach' . . . to determine which alternative [subsection] necessarily formed the basis of [the Defendant's] conviction."
United States v. Fountain, 643 F. App'x. 543, 547-548 (6th Cir. 2016) (unreported). Doc 57 at 13-18. --------
The controlling law has not changed. Defendant Barclay still has at least three predicate offenses qualifying him for ACCA sentencing. His motion for reconsideration is denied.
III. Conclusion
For the reasons stated in this opinion, this Court DENIES Defendant Barclay's motion for reconsideration. This Court certifies that Barclay could, in good faith, take an appeal on the question of whether aggravated burglary is a predicate offense under the ACCA.
IT IS SO ORDERED. Dated: August 26, 2016
s/ James S . Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE