Johnson v. United States of America
Filing
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ORDER GRANTING MOTION TO FILE SUPPLEMENTAL MEMORANDUM, DENYING MOTION PURSUANT TO 28 U.S.C. 2255, DENYING CERTIFICATE OF APPEALABILITY, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 9/7/18. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
LEEVERN JOHNSON,
Movant,
VS.
UNITED STATES OF AMERICA,
Respondent.
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Civ. No. 16-1145-JDT-egb
Crim. No. 02-10032-JDT
ORDER GRANTING MOTION TO FILE SUPPLEMENTAL MEMORANDUM,
DENYING MOTION PURSUANT TO 28 U.S.C. ' 2255,
DENYING CERTIFICATE OF APPEALABILITY,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is a motion pursuant to 28 U.S.C. § 2255 filed by the Movant, Leevern
Johnson. For the reasons stated below, the Court DENIES the § 2255 motion.
On June 17, 2002, a federal grand jury returned a four-count indictment against Johnson.
In counts one and two, he was charged with armed bank robbery in violation of 18 U.S.C.
§§ 2113(a) and (d) and brandishing a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c) for robbing the First Bank in Jackson, Tennessee, on February 28, 2002. In counts three
and four, Johnson was charged with armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and
(d) and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for the
December 6, 2001, robbery of the American Savings Credit Union in Jackson, Tennessee. On
January 16, 2003, Johnson entered a plea of guilty on counts one and two. He went to trial on
counts three and four, and a jury found him guilty on both counts on February 5, 2003. At a
hearing on April 25, 2003, Johnson was sentenced to an effective prison term of 471 months.1
The Court also imposed a three-year period of supervised release. Judgment was entered on April
25, 2003, and an amended judgment was entered on May 2, 2003. On appeal, the Sixth Circuit
affirmed. United States v. Johnson, 106 F. App’x 461 (6th Cir. 2004). Johnson filed this § 2255
proceeding on June 9, 2016. (ECF No. 1.) He subsequently filed a motion for leave to file a
supplemental memorandum. (ECF No. 5.) Leave to file the supplemental memorandum is
GRANTED.
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that
was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (internal quotation marks omitted).
After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from
the motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion.” Rule 4(b), Rules Governing § 2255
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Johnson was sentenced to concurrent 87-month terms of imprisonment for the bank
robberies, counts one and three; a consecutive 84-month term on count two, the first § 924(c)
charge; and a consecutive 300-month term on the second § 924(c) charge, count four.
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Proceedings (§ 2255 Rules). “If the motion is not dismissed, the judge must order the United
States attorney to file an answer, motion, or other response within a fixed time, or to take other
action the judge may order.” Id.
The sole issue raised in Johnson’s § 2255 motion is whether his sentence is unconstitutional
under Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a portion of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA requires a fifteen-year sentence
for a felon who is convicted of unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)
and who has three prior convictions “for a violent felony or a serious drug offense, or both.” Id.
§ 924(e)(1).
A “violent felony” is defined in the ACCA as “any crime punishable by
imprisonment for a term exceeding one year” that (1) “has as an element the use, attempted use,
or threatened use of physical force against the person of another,” (2) “is burglary, arson, or
extortion, involves use of explosives,” or (3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” Id. § 924(e)(2)(B)(i)-(ii). The last part of that
definition is commonly referred to as the “residual clause.” In Johnson the Supreme Court held
the ACCA’s residual clause was unconstitutionally vague and that increasing a defendant’s
sentence under the clause was, therefore, a denial of due process. 135 S. Ct. at 2563. The
Supreme Court later held the decision in Johnson was retroactive and thus applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257 (2016).
Johnson was not convicted of a violation of 18 U.S.C. § 922(g) or sentenced under the
ACCA. Instead, he contends his sentences on counts two and four for brandishing a firearm in
violation of 18 U.S.C. § 924(c) are unlawful because the Supreme Court’s decision in Johnson
requires the conclusion that the residual definition of “crime of violence” in 18 U.S.C. § 924(c)(3)
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is also unconstitutionally vague. The challenged portion of the statute provides that a “crime of
violence” is a felony “that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.”
Id.
§ 924(c)(3)(B).
While the ACCA’s residual definition of “violent felony” and § 924(c)(3)(B)’s residual
definition of “crime of violence” are indeed similar, Johnson’s argument is foreclosed by the
decisions in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016), and Shuti v. Lynch, 828 F.3d
440, 449-50 (6th Cir. 2016). In Taylor, the Sixth Circuit considered the precise issue raised in
this case and held that the Supreme Court’s ruling in Johnson does not require also invalidating
the residual definition of a “crime of violence” in § 924(c)(3)(B). 814 F.3d at 375-79.
In Shuti, the Sixth Circuit considered whether the residual definition of a “crime of
violence” in 18 U.S.C. § 16(b), as incorporated into the Immigration and Nationality Act (INA), 8
U.S.C. § 1101(a)(43)(F), is unconstitutionally vague after the decision in Johnson. That residual
definition is identical to the one in 18 U.S.C. § 924(c)(3)(B). The Sixth Circuit held that Johnson
compelled the conclusion that the INA’s use of that definition was also void for vagueness. Shuti,
828 F.3d at 450-51. In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Supreme Court agreed,
affirming the Ninth Circuit’s similar holding.
In his supplemental memorandum, Johnson relies on Shuti to further support his § 2255
motion. However, even though the residual definitions of “crime of violence” in the INA and in
18 U.S.C. § 924(c)(3)(B) are the same, Shuti is of no help to Johnson and actually bolsters the
decision in Taylor that § 924(c)(3)(B) is constitutional. In Shuti, the Sixth Circuit explained:
[W]e find Taylor wholly consistent with our conclusion. . . . because the statute at
issue in Taylor is a criminal offense and “creation of risk is an element of the
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crime.” See Johnson, 135 S. Ct. at 2557. As the Johnson Court determined, no
doubt should be cast upon laws that apply a qualitative risk standard to “real-world
facts or statutory elements.” See id. at 2257, 2561 (emphasis added). Unlike the
ACCA and INA, which require a categorical approach to stale predicate
convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an ultimate
determination of guilt beyond a reasonable doubt—by a jury, in the same
proceeding. This makes all the difference. . . .
Shuti, 828 F.3d at 449.
Based on the decisions in Taylor and Shuti, the Court finds that Johnson’s argument is not
well taken. Therefore, his § 2255 motion and the entire record in this case “conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), § 2255 Rules.
A response from the United States is not necessary. Accordingly, the § 2255 motion is DENIED.
Twenty-eight U.S.C. § 2253(a) requires the district court to evaluate the appealability of
its decision denying a § 2255 motion and to issue a certificate of appealability (COA) “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal without this
certificate.
A COA may issue only if the movant has made a substantial showing of the denial of a
constitutional right, and the COA must indicate the specific issue(s) which satisfy the required
showing. 28 U.S.C. §§ 2253(c)(2)-(3). A “substantial showing” is made when the movant
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citation omitted); see also Henley v. Bell, 308 F. App’x 989, 990
(6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will
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succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011)
(same). Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x
771, 773 (6th Cir. 2005).
The issue raised in this § 2255 motion is not debatable for the reasons stated. Therefore,
the Court DENIES a certificate of appealability.
In order to appeal in forma pauperis in a § 2255 case, and thereby avoid the $505 appellate
filing fee required by 28 U.S.C. §§ 1913 and 1917, a movant must obtain pauper status pursuant
to Federal Rule of Appellate Procedure 24(a). Kincade v. Sparkman, 117 F.3d 949, 951-52 (6th
Cir. 1997). Rule 24(a) provides that if the district court certifies an appeal would not be taken in
good faith, or otherwise denies leave to appeal in forma pauperis, the party must file his motion to
proceed in forma pauperis in the appellate court instead of the district court. See Fed. R. App. P.
24(a)(4)-(5).
For the same reasons the Court denies a certificate of appealability, the Court also
CERTIFIES, pursuant to Federal Rule of Appellate Procedure 24(a), that any appeal in this matter
by Johnson would not be taken in good faith. Therefore, leave to appeal in forma pauperis is
DENIED. Accordingly, if Johnson files a notice of appeal, he must also pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the
Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE
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