Johnson v. USA
ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 4 Report and Recommendations. It is accordingly ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (#2) pursuant to 28 U.S.C. § 2255 is DISMISSED without prejudice. All motions by either party not previously ruled upon are DENIED. Signed by Judge Marcia A. Crone on 4/17/2017. (daj, )
UNITED STATES DISTRICT COURT
DIETRICH LEWIS JOHNSON, #19831-078 §
UNITED STATES OF AMERICA
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 4:16-CV-521
CRIMINAL ACTION NO. 4:12-CR-80(1)
ORDER OF DISMISSAL
The above-entitled and numbered civil action was referred to United States Magistrate
Judge Christine A. Nowak. The motion was referred to the Magistrate Judge for findings of fact,
conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United
States Magistrate Judge.
Movant Dietrich Lewis Johnson has filed numerous civil actions with this Court. The
instant case was a second motion to vacate, set aside, or correct sentence filed pursuant to 28
U.S.C. § 2255. A second motion filed by a person attacking a sentence under 28 U.S.C. § 2255
must be certified as provided in 28 U.S.C. § 2244 by a panel of the appropriate court of appeals
before it can be heard in the district court. See In re Elwood, 408 F.3d 211, 212 (5th Cir. 2005).
The Court appointed counsel in this matter, and counsel sought permission from the Fifth
Circuit Court of Appeals to pursue a second or successive § 2255 motion. Together with the
Government, counsel filed a joint motion with the Fifth Circuit on September 20, 2016.
However, on January 12, 2017, the Fifth Circuit denied the motion to file a second or
successive motion. Accordingly, the Magistrate Judge concluded the case should be dismissed
since permission to file a successive motion was denied. The Magistrate Judge then issued a
Report and Recommendation, recommending the case be dismissed as successive.
The Report and Recommendation of the Magistrate Judge, which contains proposed
findings of fact and recommendations for the disposition of such action, has been presented for
consideration, and no objections have been timely filed. After reviewing the Report and
Recommendation (#4) and the record from the Fifth Circuit Court of Appeals (#5), which includes
a proposed amended § 2255 motion (#5-1, pp. 58-69), an “Amended Agreed/Joint Motion for
District Court to Consider a Second or Successive Motion under 28 U.S.C. § 2255” (#5-1, pp.
3-9) and the Fifth Circuit’s opinion denying permission to file a successive § 2255 motion (#5-1,
pp. 76-77), the Court concludes that the findings and conclusions of the Magistrate Judge are
correct, and adopts the same as the findings and conclusions of the Court.
It is accordingly ORDERED that Movant’s Motion to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (#2) pursuant to 28 U.S.C. § 2255 is DISMISSED
without prejudice. All motions by either party not previously ruled upon are DENIED.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 17th day of April, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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