United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This case is before the Court on movant Marrion Dotson's supplemental Rule 59(e) motion, Doc. #16. On March 9, 2011, Movant Dotson pleaded guilty to kidnapping and possession of a firearm in furtherance of a crime of violence. On September 21, 2011, this Court sentenced Dotson to an aggregate term of 252 months' imprisonment. Dotson appealed his conviction and sentence to the Eighth Circuit Court of Appeals, but it was affirmed.
On June 19, 2013, Dotson filed a Motion to Vacate pursuant to 28 U.S.C. Title 2255 claiming he was told by his counsel that he was pleading guilty to only one count for which he would receive a seven-year sentence and that his counsel was ineffective for failing to object to a guideline enhancement or to raise a "reasonable certainty" claim on appeal. [Doc. 1] Following the government's response, this Court denied the motion to vacate on November 1, 2013. [Docs. 6 & 7] On November 25, 2013, Dotson filed his first "Motion to Rectify Manifest Injustice" pursuant to Rule 59(e). [Doc. 8] On December 2, 2013, this Court denied the first Motion to Rectify. [Doc 9] Also on December 2nd, Dotson filed a Supplemental Motion to Rectify pursuant to Rule 59(e) suggesting that the anticipated ruling in Rosemond v. United States would be favorable to him. [Doc. 10] Before this Court ruled on the supplemental motion, Dotson filed a Notice of Appeal. [Doc. 11] The Eighth Circuit Court of Appeals has entered an order determining that the appeal lie dormant until this Court decides the supplemental Rule 59(e) Motion. [Doc. 15]
Dotson's supplemental motion to rectify merely informed the Court that the Supreme Court recently held oral arguments in Rosemond v United States , now 134 S.Ct. 1240 (2014) and predicted a change in the law. Dotson argued that there was a "landmark rule of law coming down in Rosemond, " and that he should be allowed to argue the infirmity of his §924(c) conviction in light of what Rosemond would be holding whenever it would be handed down. Dotson was merely preserving an argument hoping for a favorable ruling.
Rule 59(e) motions serve the limited function of correcting "manifest errors of law or fact or to present newly discovered evidence" in civil cases. United States v. Metro. Saint Louis Sewer Dist., 440 F.3d 930, 933 (8th Cir. 2006). "Such motions cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment." Innovative Home Health Care v. P.T.-O.T. Assoc. of the Black Hills, 141 F.3d 1284, 1286 (8th Cir.1998).
Here, Dotson's Rule 59(e) claim is essentially a successive § 2255 motion and is thus an impermissible attempt to evade the certification process provided for in Section 2244.
"It is well established that inmates may not bypass the authorization requirement of 28 U.S.C. § 2244(b)(3) for filing a second or successive § 2254 or § 2255 action by purporting to invoke some other procedure." United States v. Lambros, 404 F.3d 1034, 1035 (8th Cir. 2005) ( citing United States v. Patton, 309 F.3d 1093 (8th Cir.2002) (per curiam) (collecting cases); see also Boyd v. United States, 304 F.3d 813, 814 (8th Cir.2002) (per curiam) (if Rule 60(b) motion is actually successive habeas petition, court should dismiss it for failure to obtain authorization from court of appeals, or in its discretion, transfer motion to court of appeals)). Similarly, Dotson cannot circumvent the certification requirement under 28 U.S.C. § 2253(c)(1) through creative pleading. Lamros, 404 F.3d at 1035. A certificate of appealability or permission to seek successive habeas relief is required. Id. Movant wholly failed to follow procedure. When his motion to vacate was denied, the proper procedure was to request a certificate of appealability, not file a Rule 59(e) motion.
Dotson's Rule 59(e) motions were, in reality, efforts to file successive motions for post conviction relief. These motions should be denied because Movant did not have authorization from the Eighth Circuit. Further, the decision in Rosemond cannot justify a second or successive Section 2255 motion because it does not involve either "new evidence" or a new rule of "constitutional law." See 28 U.S.C. §§ 2255(h)(1)-(2);. Instead, Rosemond is a decision of statutory construction. See In re Dorsainvil, 119 F.3d 245, 247-48 (3rd Cir. 1997) (collecting cases holding that the new statutory interpretation announced in Bailey v. United States, 516 U.S. 137 (1995), "did not express a new rule of constitutional law" but merely interpreted a substantive criminal statute using rules of statutory construction.) Rosemond does not represent a new rule of constitutional law that would justify authorization of seeking successive habeas relief. See United States v. Foreman, 2014 WL 4403445 (N.D. Okla. Sept. 5, 2014), citing Martinez v. United States, 2014 WL 3361748 at *2 (N.D.Tex. July 9, 2014). On this basis alone, the Court will deny Dotson's motion.
In an abundance of caution, however, this Court will also address the merits of Dotson's Rosemond claims. In Rosemond v. United States, 134 S.Ct. 1240 (2014), the Supreme Court clarified the requirements for proving that a defendant aided and abetted the use of a firearm during a crime of violence or drug trafficking crime in violation of 18 U.S.C. § 924(c).
The Supreme Court held that aiding and abetting requires both culpable intent and an affirmative act. Rosemond, 134 S.Ct. at 1245. With respect to the affirmative act requirement, the Court acknowledged that a defendant may be guilty of aiding and abetting an offense without proof that he participated in every component of the crime. Thus, a defendant need not have actively facilitated the use of the firearm to be guilty of aiding and abetting. Id. at 1246-47. Regarding the intent requirement, however, the Court held that the government must prove that the defendant "actively participate(d) in a criminal venture with full knowledge of the circumstances constituting the charged offense." Id. at 1241.
In the Section 924(c) context, this means that the defendant must "know that one of his confederates will carry a gun. Id. at 1249.
In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope - that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen... to align himself with the illegal scheme in its entirety - including its use of a firearm....
He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a§ 924(c) offense-i.e., an armed drug sale.
Id. A defendant must therefore have advance knowledge that a gun will be used, meaning that he must learn of the gun at a time when he can still ...