Johnson v. Cain

Filing 25

ORDER denying 21 Motion to Reopen Case; denying 24 Motion to Consolidate Cases and Motion to Reopen Case. Signed by Judge Carl Barbier on 7/3/13. (sek, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID JOHNSON

CIVIL ACTION

VERSUS

NO: 98-1116

BURL CAIN

SECTION: "J"(4)

ORDER
Before the Court is a Motion to Reopen (Rec. Doc. 21) and a
Motion to Reopen and Consolidate (Rec. Doc. 24), filed by pro se
petitioner,

David

Johnson.

Having

reviewed

the

motion,

the

record, and the applicable law, the Court finds that Johnson's
motion should be DENIED.
Johnson is currently in custody at the Louisiana State
Penitentiary serving a sentence for a 1978 state court conviction
for armed robbery and aggravated rape. (Rec. Docs. 1, 5) On March
7, 1998, Plaintiff filed a petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254 in this Court. In December 1998, the
Court dismissed Johnson's § 2254 petition, and Johnson sought to
appeal. (Rec. Docs. 12, 13, 15) In January 1999, this Court and
the

United

Circuit")

States
denied

Fifth

Circuit

Johnson's

Court

request

for

of
a

Appeals

("Fifth

certificate

of

appealability. (Civil Action 98-1116 "T"(6), Rec. Docs. 16, 17,
20)

On August 10, 2012, Johnson filed a second § 2254 petition
for writ of habeas corpus in civil action 12-2056. In his second
petition, he asserted: (1) that the state court which convicted
him lacked subject matter jurisdiction, because the failure of
nine grand jury members to concur in retaining a true bill and
the trial court's allegedly unreasonable action in instituting
prosecution against him deprived him of due process, and (2) that
the trial court erred in denying his claim of lack of subject
matter jurisdiction. (Civil Action 12-2056 "J"(4), Rec. Doc. 2)
Under

28

U.S.C.

§

2244(b)(3)(A),

before

filing

a

second

or

successive § 2254 petition in the district court, an applicant is
required to file a motion in the appropriate court of appeals for
an order authorizing the district to consider the successive
application. 28 U.S.C. § 2244(b)(3)(A). Consequently, on August
23, 2012, pursuant to 28 U.S.C. § 2244(b)(3)(A), the Court issued
an order, (1) construing Johnson's petition, in part, as a motion
leave to file a § 2254 petition and (2) transferring Johnson's
case to the United States Fifth Circuit to allow Johnson an
opportunity to obtain authorization from that court to file his
second or successive petition.
On November 9, 2012, the Fifth Circuit denied Johnson's
motion for leave to file a successive § 2254 petition, finding
that Plaintiff had failed to make the requisite showing under 28
2

U.S.C. § 2244(b)(2) that his successive petition contained either
newly

discovered

constitutional

evidence

law,

made

or

was

based

retroactive

to

on

"a

cases

new
on

rule

of

collateral

review by the Supreme Court, that was previously unavailable."
(Rec. Doc. 5, pp. 1-2) On March 18, 2013, Johnson filed the
instant Motion to Reopen (Rec. Doc. 21) and on March 26, 2013, he
filed the instant Motion to Reopen and Consolidate. (Rec. Doc.
24)
The Court will address Johnson's Motion to Reopen (Rec. Doc.
21) and his Motion to Reopen and Consolidate (Rec. Doc. 24)
together, because they are duplicative. In both motions, Johnson
requests that the Court forward a copy of the instant motion and
its attachments to the Department of Justice and the Federal
Bureau of Investigation, because he contends that he has a right
under

the

equal

protection

clause

of

the

United

States

Constitution to prosecute state officials under several federal
criminal statutes and under state law for kidnaping and illegal
incarceration. In both motions he accuses the Fifth Circuit of
acting in collusion with state officials to deny his motion for
leave to file a successive § 2254 petition in civil action 122056 in order protect state officials from prosecution under
several federal and state criminal laws. In addition, the Motion
to Reopen and Consolidate (Rec. Doc. 24) that Johnson filed in
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this case is identical to the Motion to Reopen and Consolidate
that he filed on the same day in civil action 12-2056. On July 3,
2013, the Court issued an Order and Reasons denying Johnson's
Motion to Reopen and Consolidate in civil action 12-2056. (civil
action 12-2056 "J"(4), Rec. Doc. 9) Given that (a) the Motion to
Reopen and Consolidate in this action is identical to the one the
Court denied in civil action 12-2056, and (b) the Motion to
Reopen differs only in form, not substance, the Court finds that
both Johnson's Motion to Reopen (Rec. Doc. 21) and Motion to
Reopen and Consolidate (Rec. Doc. 24) should be DENIED for the
same reasons expressed in the Court's Order and Reasons denying
Johnson' Motion to Reopen Consolidate in civil action 12-2056.
Accordingly,
IT IS HEREBY ORDERED that Johnson's Motion to Reopen (Rec.
Doc. 21) is DENIED.
IT IS FURTHER ORDERED that Johnson's Motion to Reopen and
Consolidate (Rec. Doc. 24) is DENIED.
New Orleans, Louisiana this 3rd day of July, 2013.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

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