Johnson v. Warden Chillicothe Correctional Institution

Filing 55

OPINION AND ORDER denying 45 Motion ; denying 46 Motion ; denying 47 Motion for Leave to Proceed in forma pauperis ; denying 48 Motion for Leave to Proceed in forma pauperis ; denying 52 Motion for Certificate of Appealability; denying 53 Motion for Certificate of Appealability. Signed by Judge James L. Graham on 4/12/22. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Vincent Johnson,

Case No: 2:15-cv-971

Petitioner,

Judge Graham

v.

Magistrate Judge Deavers

Warden, Chillicothe Correctional Institution,
Respondent.
Opinion and Order
Petitioner Vincent Johnson, a state prisoner, originally brought this action for a writ of
habeas corpus, 29 U.S.C. § 2254, in March 2015. He challenged his convictions for rape, attempted
rape, kidnapping, abduction, and domestic violence on two grounds. First, he asserted that the trial
court abused its discretion by permitting admission of DNA evidence, and that he thereby was
denied due process and equal protection. Second, he asserted that he was denied his right to grand
jury findings due to an improper amendment of the indictment.
This Court dismissed the petition and denied motions for a certificate of appealability and
leave to proceed on appeal in forma pauperis. Docs. 18, 22, 24. The Court of Appeals likewise
denied petitioner’s application for a certificate of appealability and his IFP motions. Doc. 25. The
United State Supreme Court denied his petition for writ of certiorari in November 2017. Doc. 29.
Petitioner continued to file various motions requesting relief. Those motions included a
motion to set aside the judgment, a petition for writ of mandamus, a motion for reconsideration, a
motion to reopen the appeal, and a motion for an order authorizing the filing of a second or
successive habeas corpus petition.

All of petitioner’s motions were denied, as well as his

corresponding applications for certificates of appealability, motions for leave to procced IFP, and
petitions for writ of certiorari. Docs. 27, 30, 32, 34, 38, 42, 44.
This matter is now before the Court on six motions which Petitioner has recently filed. He
has filed a motion for the filing of an “independent action,” a motion to transfer the independent
action to the Sixth Circuit, motions for leave to proceed IFP, and applications for certificates of
appealability.
The Court must deny all of petitioner’s motions. The motions present no new claims,
evidence or rules of constitutional law. As he has done before, petitioner “complains that the
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United States Court of Appeals for the Sixth Circuit improperly denied his request for a certificate
of appealability and has refused to reconsider that ruling.” Doc. 38 at PAGEID 1085. With the
Sixth Circuit having dismissed his most recent appeal (on the grounds that an order denying a
certificate of appealability is not appealable), petitioner now attempts to circumvent that ruling by
asking this Court to authorize “the reopening and the setting aside” of the Sixth Circuit’s April 27,
2017 order denying petitioner’s application for certificate of appealability. Doc. 46 at PAGEID
1107–08. Petitioner would then have this Court transfer the re-opened, but “independent,” case to
the Sixth Circuit, along with a certificate of appealability and grant of leave to proceed IFP.
As the Court has previously explained, “[t]his Court is without the authority to alter a
decision of the United States Court of Appeals for the Sixth Circuit. . . . ‘[I]f [petitioner] claims that
the Sixth Circuit erred in not issuing a certificate of appealability, he is making a claim beyond the
reach of this Court unless and until the Sixth Circuit permits a second or successive motion to be
filed.’” Doc. 38 at PAGEID 1086 (quoting United States v. Cook, No. 5:06-183-DCR, 2017 WL
2872369, at *3 (E.D. Ky. July 5, 2017)). The Court reaches the same conclusion it reached before:
this Court has “no authority to reopen Petitioner’s prior appeal.” Id. at PAGEID 1087.
Accordingly, petitioner’s motions to file an independent action and to transfer the
independent action to the Sixth Circuit (docs. 45, 46) are DENIED.
Reasonable jurists would not debate whether the Court’s denial of petitioner’s motions was
proper. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Further, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Petitioner’s
motions for a certificate of appealability (docs. 52, 53) and motions for leave to appeal in forma
pauperis (docs. 47, 48) are thus DENIED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge

DATE: April 12, 2022

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