United States District Court, E.D. Missouri, Eastern Division
PERCY L. DOWNER, Petitioner,
JEFF NORMAN, Respondent.
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
case is before me on petitioner Percy Downer's
Fed.R.Civ.P. 59(e) motion to alter or amend the order denying
his petition for habeas corpus. ECF No. . For
the reasons discussed below, I deny Downer's motion.
about November 8, 2014, Percy Downer was involved in a
domestic dispute, which began when Downer yelled at the
victim to get her things out of the bathroom. When she left
the bathroom, Downer punched her multiple times causing her
to fall. Once she was on the ground Downer proceeded to choke
her and then kick her. Downer was subsequently arrested and
charged with two counts of domestic assault in the second
degree and one count of domestic assault in the third degree.
entered an Alford plea to two counts of domestic assault
in the second degree and one count of domestic assault in the
third degree on June 1, 2015. On July 10, 2015, Downer was
sentenced as a prior and persistent offender to fifteen-year
imprisonment for each charge of second-degree domestic
assault, to run consecutively, and one-year imprisonment for
the third-degree assault charge to run concurrently.
did not make a direct appeal in the state court system and,
to date, has not provided any explanation for failing to do
so. Downer did seek post-conviction relief through the state
court system, filing a Missouri Supreme Court Rule 24.035
motion pro se on November 3, 2015. After obtaining
counsel Downer's motion was amended. Downer sought an
evidentiary hearing based on claims that he had been subject
to double jeopardy and that the trial court inappropriately
accepted his plea. Downer's amended motion was denied on
February 8, 2017, because the court found that his claims
were refuted by the record. On February 17, 2017 Downer filed
a motion to reconsider, or in the alternative, a motion to
amend the order and judgment, claiming the court had failed
to address his double jeopardy claims. This claim was denied
on March 2, 2017. Downer filed an appeal after being granted
leave to do so. On February 13, 2018, the Missouri Court of
Appeals affirmed the motion court's denial of
Downer's motion for postconviction relief. Downer then
filed this petition for a writ of habeas corpus on April 18,
2018, in this court, which I denied on September 12, 2019.
current motion to alter or amend the judgment, Downer
challenges my decision as to the double jeopardy issue.
Specifically, Downer argues his Fifth Amendment rights were
violated when he was charged with and sentenced for three
domestic assault violations for a single set of events.
59(e) of the Federal Rules of Civil Procedure allows a party
to move to alter or amend a judgment no later than 10 days
after the entry of the judgment. Fed.R.Civ.P. 59(e).
“Rule 59(e) motions serve the limited function of
correcting ‘manifest errors of law or fact or to
present newly discovered evidence.'” United
States v. Metro. St. 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.” Id. The Rule “is not
intended to routinely give litigants a second bite at the
apple, but to afford an opportunity for relief in
extraordinary circumstances.” Dale & Selby
Superette & Deli v. U.S. Dep't of Agric., 838
F.Supp. 1346, 1348 (D.Minn.1993).
habeas context, Rule 59(e) motion is subject to the
restrictions on second or successive habeas petitions
outlined in 28 U.S.C. § 2254. Barnett v. Roper,
941 F.Supp.2d 1099, 1104 (E.D. Mo 2013), see also Ward v
Norris, 577 F.3d. 925, 932 (8th Cir. 2009). A Rule 59(e)
motion is not a successive habeas corpus petition if it
attacks the deficiencies in the habeas proceeding rather than
the underlying conviction or sentence. Williams v.
Norris, 461 F.3d 999, 1004 (8th Cir. 2006). In other
words, if the motion asserts a “‘federal basis
for relief from a state court's judgment of
conviction' or [is] an attack on the ‘federal
court's previous resolution of the claim on the merits,
'” then it is a second or successive petition.
Ward, 461 F.3d at 933.
Rule 59(e) motion is a second or successive habeas petition.
Because his motion attacks my “previous resolution of
the claim on the merits, ” rather than a deficiency
with the habeas proceeding, it qualifies as a successive
habeas petition and must be authorized by the circuit court.
Since no such authorization has been granted, I do not have
the jurisdiction to review the petition.
the petition was not a second or successive habeas petition,
Downer failed to show the existence of a manifest error of
law or fact. In his Rule 59(e) motion Downer continues to
argue that his convictions violate the Double Jeopardy clause
of the Fifth Amendment. But Downer fails to demonstrate any
manifest error of law or fact in my order denying habeas
the cases Downer cites in his motion illustrate that there
are instances where individual acts of domestic assault are
considered a single offense, they are not sufficient to
establish a manifest error. As I discussed in the order
denying Downer's habeas petition, the domestic assault
statute in Missouri defines the crime as “an act”
rather than a “continuous course of conduct.” ECF
No.  at 9. Additionally, Missouri courts have held that a
single incident can result in multiple convictions. See
State v. Tyler, 196 S.W.3d 638, 641 (Mo.Ct.App. 2006).
(holding that multiple charges of assault rising from the
same incident did not violate double jeopardy as the
defendant had sufficient time to reflect on his conduct and
reestablish intent); Schofield v. State, 750 S.W.2d
463, 466 (Mo.Ct.App. 1988)(held that stabbing victim with a
knife, beating victim with a piece of wood, and strangling
victim with a nylon strap were each individual ...