Johnson v. Holland
Filing
5
MEMORANDUM OPINION & ORDER: 1. Johnson's petition for a writ of habeas corpus under 28 U.S.C. § 2241 [Record No. 1 ] is DENIED. 2. This action is DISMISSED and STRICKEN from the Court's docket. 3. A corresponding Judgment will be entered this date. Signed by Judge Danny C. Reeves on 08/22/2016.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at London)
BOBBY LEON JOHNSON,
)
)
) Civil Action No. 6: 16-116-DCR
)
)
MEMORANDUM OPINION
)
AND ORDER
)
)
)
Petitioner,
v.
J. C. HOLLAND, Warden,
Respondent.
***
***
***
***
Inmate Bobby Leon Johnson is confined at the United
States
Penitentiary
-
McCreary
in
Pine
Knot,
Kentucky.
Proceeding without an attorney, Johnson has filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
[Record No. 1]
The Court conducts an initial review of habeas corpus
petitions.
28 U.S.C. § 2243; Alexander v. Northern Bureau of
Prisons, 419 F. App’x 544, 545 (6th Cir. 2011).
A petition
will be denied “if it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to
relief.”
Rule 4 of the Rules Governing § 2254 Cases in the
United States District Courts (applicable to § 2241 petitions
pursuant
to
Rule
1(b)).
The
-1-
Court
evaluates
Johnson’s
petition under a more lenient standard because he is not
represented by an attorney.
94 (2007).
Erickson v. Pardus, 551 U.S. 89,
At this stage of the proceedings, the Court
accepts the petitioner’s factual allegations as true and
construes all legal claims in his favor.
Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007).
In October 2002, Johnson and several of his co-defendants
were charged in a second superseding indictment with numerous
federal offenses arising out of a string of armed bank
robberies orchestrated by Johnson and committed in North and
South Carolina in 2000 and 2001.
indictment
with
conspiracy
to
Johnson was charged in the
commit
bank
robbery
in
violation of 18 U.S.C. § 371, bank robbery in violation of 18
U.S.C. §§ 2113(a) and 2, armed bank robbery in violation of
18 U.S.C. §§ 2113(d) and 2, using and carrying a firearm in
relation to a crime of violence in violation of 18 U.S.C. §§
924(c)
and
2,
conspiracy
to
commit
money
laundering
in
violation of 18 U.S.C. 1956(h), possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1), and
interfering with commerce by threat or violence in violation
of 18 U.S.C. §§ 1951 and 2.
-2
One month later, Johnson agreed to plead guilty to nine
of the eleven offenses in exchange for the dismissal of the
remaining two counts, one of which carried a mandatory minimum
consecutive 35-year prison term.
As part of his oral plea
agreement, Johnson expressly waived his right his challenge
his convictions or sentences, whether by direct appeal or
through a collateral attack in a post-conviction proceeding,
except upon grounds of ineffective assistance of counsel or
prosecutorial misconduct.
In November 2003, the trial court sentenced Johnson to a
cumulative 300-month term of imprisonment, which included a
combined 180-month term on eight of the nine counts to be
followed by a consecutive 120-month term on the § 924(c)
conviction.
United States v. Johnson, No. 3: 01-CR-210-MR-1
(W.D.N.C. 2003) [Record No. 97, 116, 160, 186 therein] The
Fourth Circuit affirmed on direct appeal.
Johnson, 149 F. App’x 224 (4th Cir. 2005).
United States v.
Johnson sought
relief from his convictions pursuant to 28 U.S.C. § 2255, but
his motion was denied in 2010, and the Fourth Circuit denied
his request for a certificate of appealability.
Johnson v.
United States, No. 3: 07-CV-46-MR (W.D.N.C. 2007) [Record No.
-3
4, 4-3, 15, 20 therein]; Johnson v. United States, No. 3: 07CV-46-MR, 2010 WL 1252674 (W.D.N.C. 2007).
In May 2016, the Fourth Circuit granted Johnson’s request
to file a second or successive § 2255 motion seeking relief
from his § 924(c) conviction predicated upon Johnson v. United
States, __ U.S. __, 135 S. Ct. 2551 (2015) shortly after the
Supreme
Court
decided
that
Johnson
was
retroactively
applicable to cases on collateral review in Welch v. United
States, __ U.S. __, 136 S. Ct. 1257, 1265 (2016).
Johnson, No. 16-844 (4th Cir. May 31, 2016).
In re:
On the same
day, represented by counsel, Johnson filed his motion for
relief under § 2255 in the trial court asserting the doubtful
proposition that his conviction for using or carrying a
firearm during the commission of a crime of violence pursuant
to 18 U.S.C. § 924(c)(1)(A) cannot stand because, he contends,
after Johnson robbery under the Hobbs Act, 18 U.S.C. § 2113,
is not a “crime of violence” within the meaning of the
comparably-worded
§ 924(c)(3)(A).
residual
clause
found
in
18
U.S.C.
Johnson’s motion remains pending as of this
date. Johnson v. United States, No. 3: 16-CV-275-MR (W.D.N.C.
2016).
-4
The
substance
of
Johnson’s
present
§
2241
petition
mirrors the legal arguments made by his counsel in support of
his motion under § 2255:
the
Hobbs
Act
does
not
that after Johnson, robbery under
necessarily
entail
the
actual,
attempted or threatened use of force, or a substantial risk
that it will occur during the commission of the robbery, and
hence is not a predicate crime of violence under either prong
of 18 U.S.C. § 924(c)(3).
[Record No. 1 at 14-16]
Johnson’s petition must be denied for several reasons.
First, Johnson is barred from collaterally attacking his
conviction or sentence pursuant to the waiver in his plea
agreement.
During his plea hearing, Johnson expressly agreed
not to contest his sentence in any post-conviction proceeding
including, but not limited to, a proceeding under 28 U.S.C.
§ 2255, except upon two grounds not relevant here.
Johnson
v. United States, No. 3: 07-CV-46-MR (W.D.N.C. 2007) [Record
No. 4, 15 therein].
Such waivers are enforceable in habeas
proceedings under § 2241, and preclude the assertion of his
Johnson claims, whether by motion under § 2255 or in this
habeas proceeding under § 2241.
Solis-Caceres v. Sepanek,
No. 13-21-HRW, 2013 WL 4017119, at *3 (E.D. Ky. Aug. 6, 2013)
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(collecting cases); Mabry v. Shartel, No. 122637, 2015 WL
7273817, at *1 (3d Cir. Nov. 18, 2015); Combs v. Hickey, No.
11-12-JMH, 2011 WL 65598 (E.D. Ky. Jan. 7, 2011); Peete v.
United States, No. 11-cv-2242, 2013 WL 3199834, at *1-2 (C.D.
Ill. June 24, 2013) (holding that Begay claim asserted in §
2241 petition barred by plea agreement’s waiver of right to
collaterally attack conviction); Gonzalez v. Warden of MCC
New York, No. 12-Civ. 6910, 2013 WL 144956 (S.D.N.Y. Jan. 14,
2013).
Nor is the remedy available under § 2255 “inadequate or
ineffective” where, as here, the petitioner waived his right
to
seek
relief
agreement.
under
that
provision
as
part
of
a
plea
Muse v. Daniels, 2016 WL 1163836, at *1 (7th Cir.
Feb. 24, 2016) (holding that a collateral attack waiver “would
apply equally in a proceeding under § 2241, had not § 2255(e)
taken
precedence,
for
§
2241
is
a
form
of
collateral
attack.”); Muller v. Sauers, 523 F. App’x 110, 112 (3d Cir.
2013)
(“Muller’s
plea
agreement
included
a
waiver
of
collateral-attack rights ‘in any post-conviction proceeding,
including-but not limited to-any proceeding under 28 U.S.C.
§ 2255.’
Therefore, his plea agreement forecloses relief
-6
pursuant to § 2241 . . .”); Johnson v. Warden, 551 F. App’x
489, 491 (11th Cir. 2013); Rivera v. Warden, FCI, Elkton, 27
F. App’x 511, 515 (6th Cir. 2001); United States v. ChavezSalais,
337
F.3d
1170,
1172
(10th
Cir.
2003)
(“The
conventional understanding of ‘collateral attack’ comprises
challenges brought under, for example, 28 U.S.C. § 2241, 28
U.S.C. § 2254, 28 U.S.C. § 2255, as well as writs of coram
nobis.”)
Next, 28 U.S.C. § 2255 provides an available mechanism
for Johnson to assert his Johnson claim.
previously
filed
a
§
2255
motion,
Though Johnson has
prisoners
can
file
“successive” motions based on “a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
28 U.S.C.
§ 2255(h)(2). Johnson announced a new, previously unavailable
rule of constitutional law, In re Watkins, 810 F. 3d 375, 377
(6th Cir. 2015), and the Supreme Court has held that Johnson
applies retroactively to cases on collateral review.
Welch,
136 S. Ct. at 1265 (“Johnson is thus a substantive decision
and so has retroactive effect under Teague in cases on
collateral
review.”).
Because
-7
Johnson
may
seek
relief
pursuant
to
Johnson
under
§
2255,
that
remedy
is
not
“inadequate or ineffective” to test the legality of his
detention, and his § 2241 petition must be denied.
Truss v.
Davis, 115 F. App’x 772, 773-74 (6th Cir. 2004).
Finally,
as
noted
above,
Johnson
has
been
granted
permission to seek relief under § 2255 by the Fourth Circuit,
and
Johnson’s
motion
for
relief
pending before the trial court.
under
Johnson
currently
Johnson v. United States,
No. 3: 16-CV-275-MR (W.D.N.C. 2016).
Courts have repeatedly
held that where a defendant has a currently-pending motion
seeking relief under 28 U.S.C. § 2255, any § 2241 petition
seeking relief from the same conviction is premature until
the § 2255 proceedings have concluded.
Bartok v. Warden
Loretto FCI, 609 F. App’x 707 (3d Cir 2015); Denton v. U.S.
Atty. General, No. 6: 12-CV-219-DCR, 2012 WL 5450034, at *1
(E.D. Ky. Nov. 7, 2012) (citing Smith v. United States, 89
F.3d 835 (6th Cir. 1996)); Heard v. Withers, No. 13-107-KKC,
2013 WL 3984514, at *2 (E.D. Ky. Aug. 2, 2013).
it is hereby
ORDERED as follows:
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Accordingly,
1.
Johnson’s petition for a writ of habeas corpus under
28 U.S.C. § 2241 [Record No. 1] is DENIED.
2.
This
action
is
DISMISSED
and
STRICKEN
from
the
Court’s docket.
3.
A corresponding Judgment will be entered this date.
This 22nd day of August, 2016.
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