     Case: 17-10942      Document: 00514634013         Page: 1    Date Filed: 09/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 17-10942                            FILED
                                                                      September 10, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

JOEL DARNELL PATTON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 6:16-CV-49


Before DENNIS, CLEMENT, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Joel Darnell Patton appeals the district court’s denial of his successive
habeas petition pursuant to 28 U.S.C. § 2255 1 and his post-judgment motion
for relief under Federal Rules of Civil Procedure 52(b) and 59(a), (e). Because
we conclude that Patton’s notice of appeal was untimely, we DISMISS the
appeal for lack of jurisdiction.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 28 U.S.C. § 2255, as well as the other Title 28 provisions referenced herein, fall
within the Antiterrorism and Effective Death Penalty Act of 1996, also known as “AEDPA.”
     Case: 17-10942      Document: 00514634013        Page: 2    Date Filed: 09/10/2018



                                     No. 17-10942
                                            I
      Petitioner Patton pleaded guilty in 2001 to one count of possession of a
firearm by a convicted felon under 18 U.S.C. § 922(g). He had five prior Texas
felony convictions—one for aggravated assault and four for robbery under
Texas Penal Code § 29.02. The district court enhanced Patton’s sentence under
§ 924(e) of the Armed Career Criminal Act (“ACCA”), accepting the presentence
report’s finding that Patton had “at least three prior convictions for a ‘violent
felony’ or ‘serious drug offenses,’ or both.” Patton was sentenced to 210 months
of imprisonment followed by three years of supervised release. His conviction
and sentence were affirmed on direct appeal. See United States v. Patton, 263
F.3d 166 (Table), 2001 WL 804479 (5th Cir. June 15, 2001), cert. denied, 534
U.S. 1007 (2001).
      In 2015, the Supreme Court held in Johnson v. United States that the
residual clause (the latter half of § 924(e)(2)(B)(ii)) in ACCA’s definition of a
violent felony was unconstitutionally vague. 135 S.Ct. 2551, 2562–63 (2015).
In Welch v. United States, the Court held that Johnson applied retroactively to
cases on collateral review. 136 S.Ct. 1257, 1268 (2016). This court has held that
a conviction for robbery under Texas Penal Code § 29.02 qualifies as a violent
felony under ACCA’s residual clause. See United States v. Davis, 487 F.3d 282,
287 (5th Cir. 2007). It did not directly foreclose the possibility that robbery may
support an enhancement under ACCA’s force clause. See id. 2
      The district court appointed a Federal Public Defender to assist with
Patton’s case in light of Johnson. Patton then sought authorization to file a
successive petition pursuant to 28 U.S.C. § 2255, which this court granted in
August 2016. The court noted that the “grant of authorization is tentative in


      2 This court recently held, in United States v. Burris, 17-10478, that Texas robbery
does not support an enhancement under ACCA’s force clause. The mandate in Burris has
been held, and a petition for rehearing en banc is pending.
                                            2
     Case: 17-10942      Document: 00514634013         Page: 3    Date Filed: 09/10/2018



                                      No. 17-10942
that the district court must dismiss the § 2255 motion without reaching the
merits if it determines that Patton has failed to make the showing required to
file such a motion.”
       The district court denied Patton’s successive § 2255 petition and a
certificate of appeal (“COA”) on February 9, 2017, holding that Patton had
failed to demonstrate that he was sentenced under the residual clause of
ACCA. It also stated, in the alternative, that Patton’s robbery offenses
continued to qualify as violent felonies under the force clause of ACCA; thus,
he continued to have at least three qualifying convictions. Patton filed a motion
under Federal Rules of Civil Procedure 52(b) and 59(a), (e) on February 22,
requesting that the district court reopen the judgment, amend its findings and
conclusions of law, and reconsider its denial of a COA in light of an intervening
case, United States v. Rico-Mejia, 853 F.3d 731 (5th Cir. 2017), withdrawn and
superseded on panel reh’g, 859 F.3d 318 (5th Cir. 2017). 3 The district court
denied the motion on August 8, 2017.
       On August 23, Patton filed a notice of appeal of the district court’s denial
of his successive § 2255 petition and its denial of his post-judgment motion.
This court granted Patton a COA on three issues: 1) whether Patton’s post-
judgment motion under Rules 52(b) and 59(a), (e) was an unauthorized,
successive § 2255 motion; if so, 2) whether an unauthorized, successive § 2255
motion extends the period for filing a timely notice of appeal; and 3) whether
Patton’s convictions for Texas robbery qualify as violent felonies under the
“force clause” of ACCA. The first two issues go to this court’s jurisdiction over
the appeal, and they were raised by the court sua sponte. Because Patton filed
his notice of appeal more than six months after the court denied his authorized,


       3This court in Rico-Mejia held that the defendant’s prior conviction for “terroristic
threatening” was not a “crime of violence” within the meaning of the Sentencing Guidelines
because it lacked physical force as an element. See Rico-Mejia, 859 F.3d at 322–23.
                                             3
     Case: 17-10942       Document: 00514634013         Page: 4    Date Filed: 09/10/2018



                                      No. 17-10942
successive § 2255 petition, his appeal of that order is only timely if his post-
judgment motion extended the filing deadline.
                                             II
       This court determines de novo whether a post-judgment motion for relief
from judgment should be construed as an unauthorized, successive § 2255
petition. See United States v. Brown, 547 F. App’x 637, 640–41 (5th Cir. 2013);
see also United States v. Nkuku, 602 F. App’x 183, 185 (5th Cir. 2015).
                                            III
       The Supreme Court has held that, in a proceeding under 28 U.S.C.
§ 2254, a post-judgment motion under Federal Rule of Civil Procedure 60(b)
should be construed as a successive habeas petition if it raises new claims for
relief, presents new evidence in support of a claim that has already been
litigated, contends that a subsequent change in decisional law justifies relief
from the judgment, 4 or otherwise challenges the district court’s resolution of
the underlying claim on the merits. See Gonzalez v. Crosby, 545 U.S. 524, 530–
32 (2005). Acknowledging that AEDPA’s jurisdictional restrictions, by their
terms, apply only when a court is evaluating a petitioner’s “application” for a
writ of habeas corpus, the Court stated that “it is clear that for the purposes of
§ 2244(b) an ‘application’ for habeas relief is a filing that contains one or more
‘claims.’” Id. at 530. “A habeas petitioner’s filing that seeks vindication of such
a claim is, if not in substance a habeas corpus application, at least similar
enough that failing to subject it to the same requirements would be
inconsistent with the statute.” Id. at 531 (internal quotations omitted). After
all, “alleging that the court erred in denying habeas relief on the merits is



       4A successive petition may rely on an intervening change in decisional law only if the
new law is “a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” Gonzalez v. Crosby, 545 U.S. 524,
531–32 (2005) (citing 28 U.S.C. §2244(b)(2)(A)).
                                             4
    Case: 17-10942     Document: 00514634013     Page: 5   Date Filed: 09/10/2018



                                  No. 17-10942
effectively indistinguishable from alleging that the movant is, under the
substantive provisions of the statutes, entitled to habeas relief.” Id. at 532.
      Thus, challenges to a district court’s resolution of claims on the merits
or attempts to raise new claims for relief are construed as unauthorized,
successive habeas petitions—even when the application is self-styled as a Rule
60(b) motion. Id. at 530–32. If, however, a post-judgment motion “attacks, not
the substance of the federal court’s resolution of a claim on the merits, but
some defect in the integrity of the federal habeas proceedings,” courts should
not construe the motion as a successive petition. Id. at 532. A petitioner does
not improperly attack a district court’s merits determination when “he merely
asserts that a previous ruling which precluded a merits determination was in
error—for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.” Id. at 532 n.4 (emphasis added).
      Courts have extended the logic of Gonzalez beyond its specific procedural
posture. Relevantly, for example, Gonzalez’s rationale applies equally to
proceedings under § 2255. See United States v. Hernandes, 708 F.3d 680, 681
(5th Cir. 2013); Brown, 547 F. App’x at 641; see also Williams v. Thaler, 602
F.3d 291, 303 (5th Cir. 2010) (noting with approval that “[n]early every circuit
has applied the Gonzalez rationale to federal prisoners seeking habeas relief
under § 2255” and collecting cases). This circuit has also applied the Gonzalez
framework to post-judgment motions under Rule 59(e), noting that while
differences exist between Rule 59(e) and Rule 60(b), both Rules “permit the
same relief—a change in judgment.” Williams, 602 F.3d at 303 (quoting Harcon
Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665, 669 (5th Cir. 1986)).
      These extended applications of Gonzalez are entirely logical. The general
concern identified in Gonzalez—that petitioners may use post-judgment
motions to make an end-run around AEDPA’s exacting procedural
requirements—is not exclusive to the Rule 60(b) (or the Rule 59(e)) context. Id.
                                        5
    Case: 17-10942     Document: 00514634013     Page: 6   Date Filed: 09/10/2018



                                  No. 17-10942
Indeed, while this circuit has never squarely addressed Gonzalez’s successive
petition analysis in the context of a post-judgment motion under Rule 52(b) or
59(a) specifically, the court has stated that “[a]ny motion that draws into
question the correctness of a judgment is functionally a motion under Civil
Rule 59(e), whatever its label,” and should be treated as such. Harcon Barge,
784 F.2d at 669–70 (internal quotations omitted). Accordingly, the answer to
the successive petition inquiry turns on the actual substance of Patton’s post-
judgment motion—not the motion’s technical title. See id. If Patton’s motion
attacks the merits of the district court’s ruling on his § 2255 petition, it is an
unauthorized, successive habeas petition, regardless of the fact that it was self-
styled as a Rules 52(b) and 59(a), (e) motion.
      First, the court must examine the district court’s ruling on Patton’s
§ 2255 petition to determine the basis of its dismissal. Noting that the appeals
court had directed it to dismiss Patton’s petition without reaching the merits
if it determined that he had failed to make the required showing, the district
court stated that Patton had not sufficiently demonstrated that his sentence
was enhanced under the unconstitutional residual clause. This finding, as the
government seems to concede, was a procedural, threshold determination—not
a ruling on the merits. See generally 28 U.S.C. § 2244(b)(4). However, the
district court went on to hold, in the alternative, that Patton’s robbery
convictions continued to qualify as violent felonies under the force clause of
ACCA. This is a resolution of the force clause argument Patton raised in his
motion for authorization and implicated in his § 2255 petition on the merits.
      Patton’s post-judgment motion focuses entirely on the district court’s
latter, merits-based ruling. He makes two primary arguments: (1) Texas
robbery does not satisfy the force clause of ACCA; and (2) this court’s opinion
in Rico-Mejia is an intervening change in law that confirms the district court
clearly erred in interpreting ACCA’s force clause to encompass Patton’s
                                        6
    Case: 17-10942     Document: 00514634013      Page: 7   Date Filed: 09/10/2018



                                  No. 17-10942
robbery convictions. Patton’s post-judgment motion does not directly challenge
the district court’s threshold, “pre-merits” ruling—that Patton had failed to
demonstrate that he was sentenced under the residual clause.
      Patton maintains that his post-judgment motion was merely challenging
the district court’s refusal to reach the merits of his underlying claim. A close
look at the substance of the motion belies this characterization. Again, the
motion never once mentions the district court’s finding regarding Patton’s
failure to demonstrate his sentence was enhanced under the residual clause.
This is a critical omission: the district court’s determination with respect to
Patton’s threshold burden is the only type of finding that would have precluded
a merits determination. Accordingly, the ruling on Patton’s burden is the only
proper subject of a motion seeking a change in the judgment. See Gonzalez, 545
U.S. at 532 n.4. Instead, Patton quarrels only with the district court’s
alternative merits holding.
      Additionally, Patton asserts that an intervening change in law justifies
an amendment of the district court’s judgment. Gonzalez makes clear that,
under AEDPA, an intervening change in law is only a proper basis for relief if
the case announces “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”
Gonzalez, 545 U.S. at 531–32 (citing 28 U.S.C. §2244(b)(2)(A)). Patton does not
argue—nor can he—that Rico-Mejia announced a new constitutional rule. And,
more fundamentally, Rico-Mejia is neither itself a Supreme Court case, nor
does it espouse a constitutional principle blessed by the Supreme Court and
explicitly made retroactive. Accordingly, Patton’s argument runs afoul of
Gonzalez’s limitations on post-judgment motions that rely on an intervening
change in law as a basis for relief. See id. at 532.
      Because Patton’s post-judgment motion attacks the district court’s
merits determination that Patton’s robbery convictions satisfy ACCA’s force
                                         7
     Case: 17-10942        Document: 00514634013          Page: 8     Date Filed: 09/10/2018



                                        No. 17-10942
clause 5—irrespective of whether that conclusion was in fact erroneous—and
relies on an intervening change in law that is not a new constitutional rule
made retroactive to cases on collateral review, it is an unauthorized, successive
§ 2255 petition under Gonzalez and its progeny.
                                              IV
       Generally, a petitioner has 60 days from the denial of his § 2255 petition
to file a notice of appeal. 28 U.S.C. § 2107(b); FED. R. APP. P. 4(a)(1)(b). Because
the filing deadline is prescribed by statute, the limitation is jurisdictional and
a petitioner’s failure to timely file requires dismissal of the underlying action.
See Bowles v. Russell, 551 U.S. 205, 210–13 (2007). The district court denied
Patton’s § 2255 petition on February 9, 2017. Patton filed his notice of appeal
on August 23, 2017, more than six months after the district court’s denial.
       Again, however, Patton did file a timely motion for relief pursuant to
Rules 52(b) and 59(a), (e). That motion was filed within 28 days of the denial
of Patton’s § 2255 petition, as required by the Federal Rules. Post-judgment
motions will ordinarily toll the filing period, and the deadline for filing a notice
of appeal will be 60 days from the entry of an order disposing of the motions.


       5 Patton argues in his brief on appeal that his original motion for authorization to file
a successive petition that was submitted to this court was not docketed for consideration by
the district court as directed in the authorization order. He contends that this was a “defect
in the integrity of the post-conviction proceeding”—a proper basis for a post-judgment motion.
This argument is unavailing. To begin with, Patton cites absolutely no authority for the
proposition that this type of filing error was the type of challengeable “defect” contemplated
by Gonzalez. Moreover, Patton’s post-judgment motion mentioned the potential filing mishap
in a footnote stating only that “[i]f the [district court] did not have the benefit of the
arguments raised in the motion for authorization,” it would provide “an independent reason
to reopen the case and consider those arguments.” This court has stated that “[a] single
conclusory sentence in a footnote is insufficient to raise an issue for review.” United States v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006) (citing Beazley v. Johnson, 242 F.3d 248, 270 (5th
Cir. 2001)). Again, Patton’s contention that his post-judgment motion was permissibly
focused on defects in the integrity of the post-conviction proceeding is simply disingenuous.
The entire body of the motion is focused on the alleged error in the district court’s conclusion
that Patton’s robbery convictions qualified as violent felonies under the force clause—a
merits determination.
                                               8
     Case: 17-10942       Document: 00514634013          Page: 9     Date Filed: 09/10/2018



                                       No. 17-10942
FED. R. APP. P. 4(a)(4)(A)(ii), (iv). If, however, a post-judgment motion is in fact
an unauthorized, successive § 2255 petition, the filing period is not tolled. See
Uranga v. Davis, 893 F.3d 282, 284 (5th Cir. 2018) (citing Williams, 602 F.3d
at 303–04); Brown, 547 F. App’x at 640–41. 6
       It is undisputed that Patton did not file his notice of appeal within 60
days of the district court’s disposition of his successive § 2255 petition. Because
his post-judgment motion is properly characterized as an unauthorized,
successive petition, it did not toll the filing deadline. Accordingly, because
Patton’s notice of appeal was untimely, this court lacks jurisdiction to hear the
appeal.
                                              V
       For the foregoing reasons, Patton’s appeal of the district court’s denial of
his successive § 2255 petition and post-judgment motion for relief is
DISMISSED for lack of jurisdiction.




       6 Patton cites Castro v. United States, 540 U.S. 375, 386 (2003) to support the
proposition that “the court should not re-write the motion over the appellant’s objection,
particularly where the effect of that revision would be to deprive the Court of jurisdiction to
consider his otherwise timely appeal.” Castro, however, dealt with the recharacterization of
a post-judgment motion to the detriment of a pro se litigant. See Castro, 540 U.S. at 382. The
equitable considerations underlying the Supreme Court’s reasoning in Castro are
inapplicable where the petitioner is represented by competent legal counsel.
                                              9
