Johnson v. United States of America

Filing 15

ORDER denying as moot 4 Motion for Extension of Time to File; denying 8 Motion for Certificate of Appealability; denying 9 Motion for Leave to Appeal in forma pauperis; denying 10 Motion to Set Aside Judgment. The Court directs the Clerk of Court to send a copy of this order to the Court of Appeals in connection with Appeal No. 14-1151. Signed by Judge J. Phil Gilbert on 2/4/2014. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES HOWARD JOHNSON,
Petitioner,
v.

Civil No. 13-cv-1044-JPG

UNITED STATES OF AMERICA,

Criminal No 12-cr-40075-JPG

Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner James Howard Johnson’s motions for an
extension of time to file a notice of appeal (Doc. 4), for a certificate of appealability (Doc. 8), for
leave to appeal in forma pauperis (Doc. 9) and to void judgment (Doc. 10).
I.

Motion for an Extension of Time to File a Notice of Appeal (Doc. 4)
Federal Rule of Appellate Procedure 4 sets forth the timing rules relating to notices of

appeal. Rule 4(a)(1)(B) provides that, in a civil case in which the United States is a party, the
notice of appeal must be filed within 60 days of entry of the order from which the appeal is taken.
An inmate confined in an institution is considered to have timely filed a notice of appeal when he
deposits it into the institution’s internal mail system on or before the last day for filing. Fed. R.
Civ. P. 4(c)(1); see Houston v. Lack, 487 U.S. 266, 276 (1988).
In this case, the Court entered final judgment on November 15, 2013. Thus, under Rule
4(a)(1)(B), Johnson had up to and including January 14, 2014, to file a notice of appeal. The
certificate of service on his January 17, 2014, notice of appeal shows that he placed it into the
prison mail system on January 13, 2014. Thus, it was timely, and there is no need to grant him an
extension of time. Accordingly, the Court DENIES as moot Johnson’s motion for an extension
of time (Doc. 4).

II.

Motion for a Certificate of Appealability (Doc. 8)
A § 2255 petitioner may not proceed on appeal without a certificate of appealability. 28

U.S.C. § 2253(c)(1); see Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). A
certificate of appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274,
282 (2004); Ouska, 246 F.3d at 1045. To make such a showing on a substantive ground for relief,
the petitioner must “demonstrate that reasonable jurists could debate whether [the] challenge in
[the] habeas petition should have been resolved in a different manner or that the issue presented
was adequate to deserve encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord
Tennard, 542 U.S. at 282; Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of
appealability should issue if the petitioner demonstrates “that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”). To make such a
showing where the Court denies relief on procedural grounds, the petitioner must also show “that
jurists of reason would find it debatable . . . whether the district court was correct in its procedural
ruling.” Slack, 529 U.S. at 484 (emphasis added); accord Gonzalez v. Thaler, 132 S. Ct. 641, 648
(2012). Disputes about procedural or statutory issues in a case cannot justify a certificate of
appealability unless “a substantial constitutional issue lurks in the background, and the statutory
question is independently substantial.” Ramunno v. United States, 264 F.3d 723, 725 (7th Cir.
2001) (question of a petition’s timeliness) (citing Slack, 529 U.S. at 483-85).
The Court finds that Johnson has not made a showing that reasonable jurists would find the
constitutional claims debatable or that any debatable constitutional claims “lurk in the
background” of any non-constitutional issues. Accordingly, the Court DENIES the motion for a
certificate of appealability (Doc. 8).
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III.

Motion for Leave to Proceed on Appeal In Forma Pauperis (Doc. 9)
A federal court may permit a party to proceed on appeal without full pre-payment of fees

provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) & (3);
Fed. R. App. P. 24(a)(3)(A). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209
F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not
frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v.
O’Brien, 216 F.3d 626, 632 (7th Cir. 2000).
While the Court is satisfied that Johnson is indigent, it finds his appeal is frivolous for the
reasons stated in the Court’s November 15, 2013, order (Doc. 2). Accordingly, the Court
DENIES Johnson’s motion for leave to proceed on appeal in forma pauperis (Doc. 9).
IV

Motion to Void Judgment (Doc. 10)
Because this motion was filed more than 28 days after entry of judgment, the Court

construes this as a motion to vacate the judgment pursuant to Federal Rule of Civil Procedure
60(b). See Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008); Mares v. Busby, 34 F.3d
533, 535 (7th Cir. 1994). It is well settled that Rule 60(b) relief is an extraordinary remedy and is
granted only in exceptional circumstances. McCormick v. City of Chicago, 230 F.3d 319, 327
(7th Cir. 2000) (citing Dickerson v. Board of Educ., 32 F.3d 1114, 1116 (7th Cir. 1994)). Rule
60(b) allows a court “to address mistakes attributable to special circumstances and not merely to
erroneous applications of law.” Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746,
749 (7th Cir. 1995). The rule authorizes a Court to grant relief from judgment for the specific
reasons listed in the rule but does not authorize action in response to general pleas for relief. See
Young v. Murphy, 161 F.R.D. 61, 62 (N.D. Ill. 1995). It is also not an appropriate vehicle for
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addressing simple legal error, for rehashing old arguments, or for presenting arguments that should
have been raised before the court made its decision. Russell, 51 F.3d at 749; Rutledge v. United
States, 230 F.3d 1041, 1052 (7th Cir. 2000); Young, 161 F.R.D. at 62; In re Oil Spill by “Amoco
Cadiz,” 794 F. Supp. 261, 267 (N.D. Ill. 1992), aff’d, 4 F.3d 997 (7th Cir. 1993) (Table).
Johnson raises in his motion the same arguments he raised in his original petition, which
the Court rejected. He has offered no reason justifying relief under Rule 60(b). Accordingly, the
Court DENIES Johnson’s motion to void the judgment (Doc. 10).
The Court DIRECTS the Clerk of Court to send a copy of this order to the Court of
Appeals in connection with Appeal No. 14-1151.
IT IS SO ORDERED.
DATED: February 4, 2014
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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