IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10942

UNITED STATES OF AMERICA, 

 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. § 22551 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.”

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2018

Lyle W. Cayce

Clerk

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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. 

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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 postjudgment 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, 

 

3 This 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.

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successive § 2255 petition, his appeal of that order is only timely if his postjudgment 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 

 

4 A 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)). 

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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. 

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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 postjudgment 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 selfstyled 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 

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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 

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clause5—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. 

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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. 

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