Johnson v. United States of America

Filing 31

ORDER denying 30 Letter Motion to Stay re: 30 LETTER MOTION to Stay proceedings on Mr. Johnson's successive petition pending a final resolution of US v. Savoca addressed to Judge Richard J. Sullivan from Jeffrey Pittell dat ed 2.9.23. Because the Second Circuit in Savoca remanded the case to the district court, and any appeal from the district court's decision on remand is, at this point, hypothetical, Johnson's motion to stay is DENIED. Johnson shall reply to the government's opposition to his successive habeas petition by February 24, 2023. (Signed by Judge Richard J. Sullivan on 2/10/2023) Sitting by Designation. (ate)

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February 9, 2023
Hon. Richard J. Sullivan
U.S. Court of Appeals for the Second Circuit
500 Pearl St.
Room 2530
New York, New York 10007
Re:

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Second Habeas Petition



U.S. v. Johnson 11 cr 487 (RJS); Johnson
v. U.S.
15 civ
3956 (RJS)

Dear Judge Sullivan:
I am counsel for John Johnson in the above referenced matter.
Previously, following a jury trial, inter alia, Mr. Johnson was convicted of a violation of 18
U.S.C. §924(c). The predicate crimes of violence for this offense were conspiracy to commit Hobbs
Act robbery and Attempted Hobbs Act robbery. As I trust your Honor is aware, both of these
offenses are no longer valid predicate crimes of violence for §924(c) offenses. See, United States
v. Davis, 139 S. Ct. 2319, 2336 (2019) and United States v. Taylor, 142 S. Ct. 2015 (2022).
Following the issuance of these Supreme Court rulings, I filed a Successive Habeas Petition
(the “Successive Petition”), and supporting Memorandum of Law, on behalf of Mr. Johnson in the
above referenced matter. The Successive Petition was filed pursuant to an Order, authorizing its
filing, issued by the Second Circuit.
The Government has submitted its opposition to the Successive Petition and my reply is
pending.
Previously, prior to the filing of the Successive Petition, the parties jointly requested the
filing of the Successive Petition be stayed pending the Second Circuit’s decision in United States
v. Savoca, 20-1502. Like the matter at bar, Savoca also involved the filing of a successive habeas
petition claiming the defendant’s §924(c) conviction was now invalid based upon Davis and Taylor.
The issue before the Second Circuit was whether the successive habeas claim asserted in Savoca
was barred by the gatekeeping provision of 28 U.S.C. §2255(h)(2) which only permits successive
habeas petitions to be based upon new rules of constitutional law. In submitting the joint request
for the stay of this matter, the parties believed the Second Circuit’s ruling in Savoca would have
direct bearing on the Successive Petition.

Case 1:11-cr-00487-RJS Document 208 Filed 02/09/23 Page 2 of 2

The Second Circuit issued a ruling in Savoca, 2022 WL 17256392. However, as it turned
out it was not dispositive on the §2255(h)(2) gatekeeping issue presented in Savoca and the matter
at bar. The Second Circuit held that record on appeal was insufficient to determine whether the
successive petition in Savoca fact relied on new rule of constitutional law. 2022 WL 17256392 at
*2-3. As such, the case was remanded to the District Court (SDNY, VB) for a factual determination
as to whether the defendant was sentenced under the elements clause or the residual clause of
§924(c). Currently, this determination is pending before Judge Briccetti.
The analysis to be undertaken by Judge Briccetti will mirror the analysis which needs to
occur in this case. Notably in its opposition to the Successive Petition, the Government references
the instructions issued by the Second Circuit in Savoca. Due this circumstance, in the interest of
judicial economy, I respectfully request the litigation in this matter be stayed pending a final
determination of Savoca. Although Savoca is now pending in a sister District Court, it is certainly
possible that -- regardless of the ruling by Judge Briccetti -- the non-prevailing party may appeal
back to the Second Circuit contending the ruling was in error of did not comply with the directives
of the Savoca remand. Or, in the alternative, in the event no appeal following remand is taken, the
ruling of Judge Briccetti may be insightful and provide a source of persuasive authority. For these
reasons, I seek a stay of this matter pending a final resolution of Savoca.
Prior to submission of this letter, I conferred with the Government. They do not oppose this
request. However, they contend this Court can proceed independent of Savoca.

Respectfully submitted,
/s/
Jeffrey G. Pittell
cc: Cecilia Vogel, AUSA