Johnson v. USA
Filing
2
MEMORANDUM AND OPINION AND ORDER signed by District Judge Thomas A Varlan on 7/21/2020. (JDH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Plaintiff,
v.
SHERVON S. JOHNSON,
Defendant.
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Nos.: 3:95-CR-126-TAV-DCP-1
3:20-CV-279-TAV-DCP
MEMORANDUM OPINION AND ORDER
Defendant has moved to vacate his sentence under 28 U.S.C. § 2255 in light of the
Supreme Court’s holding in United States v. Davis, 139 S. Ct. 2319 (2019) [Doc. 309].1
Because the court finds that defendant’s motion is an unauthorized second or successive
motion under § 2255, it will TRANSFER his motion to the Sixth Circuit Court of
Appeals.
Defendant filed a notice through counsel advising the Court that he had filed a
second or successive § 2255 motion in this court with the expectation that this Court
would transfer the motion to the Sixth Circuit pursuant to 28 U.S.C. § 1631 [Doc. 308].
Under the Antiterrorism and Effective Death Penalty Act of 1996, a district court
may not consider a “second or successive motion” collaterally attacking a defendant’s
federal sentence until the appellate court, as provided in 28 U.S.C. § 2244, certifies that
the motion satisfies the requirements of § 2255(h). § 2255(h); see also § 2244(b)(3)(A).
1
All docket citations refer to the criminal case, No. 3:95-CR-126-1, unless otherwise
indicated.
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If a defendant fails to obtain authorization before filing such a motion in the district court,
the district court must transfer the motion to the appellate court under § 1631. In re Sims,
111 F.3d 45, 47 (6th Cir. 1997).
However, the district court must first determine that a subsequent petition is
indeed “second or successive.” In re Smith, 690 F.3d 809, 810 (6th Cir. 2012). The
definition of a second or successive motion within the meaning of § 2244(b) remains
somewhat hazy. See Askew v. Bradshaw, 636 F. App’x 342, 346 (6th Cir. 2016) (noting
that AEDPA does not define the term and citing Slack v. McDaniel, 529 U.S. 473, 486
(2000), for its characterization of “second or successive” as a “term of art”). But, the
Supreme Court has indicated that a second or successive § 2255 motion is one that raises
new “claims” after a defendant has already litigated and lost a § 2255 motion. See
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) (holding that “for purposes of § 2244(b) an
‘application’ for habeas relief is a filing that contains one or more ‘claims’”); In re
Nailor, 487 F.3d 1018, 1022–23 (6th Cir. 2007) (holding that the reasoning in Gonzalez
applies to § 2255 proceedings, and that “a Rule 60(b) motion should be considered a
§ 2255 motion to vacate, set aside, or correct the sentence ‘if it attacks the federal court’s
previous resolution of a claim on the merits’” or if it “attempts ‘to add a new ground for
relief’” (quoting Gonzalez, 545 U.S. at 532)); see also In re Bowen, 436 F.3d 699, 704
(6th Cir. 2006) (“[C]ourts defining ‘second or successive’ generally apply abuse of the
writ decisions, including those decisions that predated AEDPA. . . . Under the abuse of
the writ doctrine, a numerically second petition is ‘second’ when it raises a claim that
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could have been raised in the first petition but was not so raised, either due to deliberate
abandonment or inexcusable neglect.”). Section 2255(h) provides that one such new
claim might rest on “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
Here, defendant was convicted in 1996 of various federal crimes, including aiding
and abetting the use of a firearm during and in relation to a crime of violence, in violation
of 18 U.S.C. §§ 924(c) and 2 [Doc. 199]. Defendant filed a § 2255 motion in 2016
arguing the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), which invalidated the residual clause of the Armed Career Criminal Act
(“ACCA”), applied to invalidate the residual clause in § 924(c)(3)(B)’s definition of a
crime of violence [See Docs. 24, 297]; the Court denied defendant’s motion on the merits
[Docs. 297, 298].
In the instant motion, defendant seeks to collaterally attack his
sentence again, this time by contending that after the Supreme Court’s 2019 decision in
United States v. Davis, his § 924(c) conviction is invalid because the predicate upon
which it rests was valid only under the residual clause [Doc. 309 p. 6].
Because
defendant’s motion presents a ground for relief from his sentence that he did not raise in
his previous § 2255, defendant’s motion presents a new “claim[]” and accordingly
qualifies as a second or successive § 2255 motion.
Although defendant’s motion represents a second or successive motion to vacate
under § 2255, the Court has not received authorization from the Sixth Circuit Court to
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consider it. Accordingly, the Clerk is DIRECTED to TRANSFER defendant’s § 2255
motion [Doc. 309] to the Sixth Circuit pursuant to 28 U.S.C. § 1631.
There being no other issues remaining before the Court, the Clerk of Court is
DIRECTED to CLOSE the civil case.
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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