Johnson v. United States Of America

Filing 4

ORDER DISMISSING WITH PREJUDICE. Signed by Judge Kathleen Cardone. (vm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
KENNETH RAY JOHNSON,
Reg. No. 38827-177,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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EP-15-CV-241-KC

DISMISSAL ORDER
This matter is before the Court on Petitioner Kenneth Ray Johnson’s pro se petition under
28 U.S.C. § 2241 for a writ of habeas corpus. In his petition, Johnson, a federal prisoner at the
La Tuna Federal Correctional Institution in Anthony, Texas,1 challenges his guilty-plea
conviction and 160-month sentence for distributing methamphetamine and aiding and abetting.
Johnson claims that the indictment in his criminal case fails to charge an offense, and that his
prior state-court convictions do not support his punishment as a career offender. After reviewing
the record and for the reasons discussed below, the Court will sua sponte dismiss the petition,
pursuant to 28 U.S.C. § 2243.2
BACKGROUND AND PROCEDURAL HISTORY
According to court records in case number 5:09-CR-43-C-16 in the United States District

1

Anthony is located in El Paso County, Texas, which is within the territorial confines of
the Western District of Texas. 28 U.S.C. § 124(d)(3) (2006).
2

28 U.S.C. § 2243 (2012) (“A court . . . entertaining an application for a writ of habeas
corpus shall forthwith award the writ or issue an order directing the respondent to show cause
why the writ should not be granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.”).

Court for the Northern District of Texas,3 on March 12, 2009, a cooperating individual (“CI”)
working with Texas Department of Public Safety (“DPS”) officers during their investigation of
drug-trafficking in and around Lubbock, Texas, made arrangements during a consensuallyrecorded telephone conversation with Johnson to purchase approximately one ounce of
methamphetamine from him. While under surveillance by DPS officers, the CI went to
Johnson’s house in Levelland, Texas, with $1,400 in cash taken from the DPS imprest fund.
While at the house, the CI accepted what Johnson described as one ounce of methamphetamine
in exchange for $1,400 in cash. After the transfer, the CI turned the substance over to the DPS
officers who forwarded it to the South Central Laboratory in Dallas, Texas, for analysis. The
analysis revealed the substance sold by Johnson to the CI had a gross weight of 26.8 grams and
contained 5.68 grams of actual methamphetamine.
A grand jury sitting in the Norther District of Texas, Lubbock Division, returned a 117count superseding indictment which charged Johnson and twenty-eight other defendants with
multiple drug-trafficking offenses. Johnson elected to forgo trial and pleaded guilty, pursuant to
a plea agreement, to count 18 of the indictment which charged him with distributing
methamphetamine and aiding and abetting:
Count 18
Distribution of Methamphetamine
(Violation of21 U.S.C. §§ 841(a)(l), 841(b)(l)(C))
On or about March 12, 2009, at Levelland, Hockley County, Texas,
in the Lubbock Division of the Northern District of Texas, and elsewhere,
Kenneth Ray Johnson, Teddy Ralph Johnson, and Bobby Duwayne
Froman, defendant, did intentionally and knowingly distribute a mixture and
substance containing a detectable amount of methamphetamine, to wit:
3

See Factual Resume 2–10, ECF No. 768, Nov. 12, 2009, United States v. Johnson, 5:09CR-43-C-16 (N.D. Tex.).
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approximately 26.25 grams of methamphetamine, a Schedule II Controlled
Substance.
A violation of Title 21, United States Code, Sections 841(a)(1),
841(b)(l)(C); Title 18, United States Code, Section 2; and Pinkerton v. United
States, 328 U.S. 640 (1946).4
As part of the plea agreement, Johnson waived his right, with limited exceptions, to attack his
sentence in a direct appeal or collateral challenge:
Johnson waives his rights, conferred by 28 U.S.C. § 1291 and l8 U.S.C. §
3742, to appeal from his conviction and sentence. He further waives his right
to contest his conviction and sentence in any collateral proceeding, including
proceedings under 28 U.S.C. S 2241 and 28 U.S.C. S 2255. Johnson,
however, reserves the right: (a) to bring a direct appeal of a sentence
exceeding the statutory maximum punishment, and (b) any claims of
ineffective assistance of counsel.5
Johnson also agreed and stipulated in the plea agreement that he was a career offender and that
he would be sentenced, pursuant to United States Sentencing Guideline (“USSG”) § 4Bl.l, as a
career offender:
Additionally, the government agrees to forebear the filing of a 21 U.S.C. §
851 Enhancement Information predicated upon Johnson’s five prior
convictions for “felony drug offenses” which have become final. However,
the defendant does understand and agree that these convictions, will be
considered in the calculation of his USSG sentence computation.
Specifically, defendant Kenneth Ray Johnson admits and acknowledges
pursuant to USSG § 4B1.1 that (1) he was at least eighteen years old at the
time he committed the instant offense of conviction; (2) the instant offense
of conviction, Count 18 charging Distribution of Methamphetamine on
March 12, 2009, is a felony that is a “controlled substance offense,” that is,
an offense under federal law, punishable by imprisonment for a term
exceeding one year, that prohibits the distribution of a controlled substance,
as defined in USSG § 4B1.2(b); and (3) the defendant has at least “two prior

4

Superseding Indictment 23, ECF No. 587, Aug. 12, 2009, United States v. Johnson,
5:09-CR-43-C-16 (N.D. Tex.).
5

Plea Agreement 6–7, ECF No. 767, Nov. 12, 2009, United States v. Johnson, 5:09-CR43-C-16 (N.D. Tex.).
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felony convictions” for controlled substance offenses, as that term is defined
in USSG § 4B1.2(c). In this regard, the defendant admits and acknowledges
that he is one and the same person who, under the name “Kenneth Ray
Johnson,” was on September 23, 2004, convicted of the First Degree felony
controlled substance offense of Unlawful Possession With Intent to Deliver
a Controlled Substance, to wit: Methamphetamine, in Criminal District Court
of Dallas County, Texas, in Cause Number F0434640HL (date offense
committed, March 11, 2004). Further, the defendant admits and
acknowledges that he is one and the same person who, under the name
“Kenneth R. Johnson,” was on September 13, 2005, convicted of the First
Degree felony controlled substance offense of Possession of a Controlled
Substance With Intent to Deliver PG1 Methamphetamine Less Than 200
Grams But At Least 4 Grams, in the 364th District Court of Lubbock County,
Texas, in Cause Number 2000-435202 (date offense committed, September
17, 2000). Thus the defendant agrees and stipulates that he is a “Career
Offender” and will be sentenced pursuant to the provisions of USSG § 4Bl.l
as a “Career Offender,” with a Base Offense Level of 32, Criminal History
Category VI, since the statutory maximum sentence for the offense of
conviction is 20 years or more, but less than 25 years. See 4B1.1(b)(C).6
In exchange, the Government agreed that it would not bring additional charges against Johnson
and that it would move to dismiss the remaining twenty-one counts against him in the
superseding indictment.
At Johnson’s re-arraignment, the Court found that Johnson was “fully competent and
capable of entering an informed plea and that his plea of guilty [was] a knowing and voluntary
plea supported by an independent basis in fact containing each of the essential elements of the
offense charged in Count 18.”7 The Court accepted Johnson’s plea and sentenced him to 160
months’ imprisonment followed by ten years’ supervised release.8 Johnson did not appeal.

6

Plea Agreement 4–5, ECF No. 767, Nov. 12, 2009, United States v. Johnson, 5:09-CR43-C-16 (N.D. Tex.).
7

Plea Tr. 7, ECF No. 1052, Mar. 11, 2011, United States v. Johnson, 5:09-CR-43-C-16
(N.D. Tex.).
8

J., ECF No. 988, Mar. 5, 2010, United States v. Johnson, 5:09-CR-43-C-16 (N.D. Tex.).
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Johnson did file a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a
sentence.9 In his motion, Johnson asserted that the Court violated the Double Jeopardy Clause by
awarding him nine criminal history points and punishing him twice for the same conduct. He
also challenged the 160-month sentence as improperly disparate from that of his co-defendants.
The Government countered that Johnson waived his right to challenge his conviction on these
grounds as part of his plea agreement. The Court agreed that, because Johnson knowingly and
voluntarily waived his right to seek post-conviction relief except on limited grounds, none of
which were implicated by his double jeopardy or disparate sentence claims, those grounds were
barred from collateral review. Johnson also argued that he received ineffective assistance of
counsel because his attorney (1) failed to raise a double jeopardy defense against the application
of the USSG, (2) neglected to challenge his conviction for both the substantive
methamphetamine offense and aiding and abetting, and (3) did not argue that Johnson’s sentence
was disparate from that of his co-defendants. The Court found that it would have been futile for
Johnson’s attorney to have raised these objections, and concluded that his attorney was not
ineffective. Accordingly, the Court denied Johnson § 2255 relief.10
Johnson claimed in a subsequent § 2255 motion that he did not qualify as a career
offender.11 According to Johnson, the Court immediately denied the motion as a second or

9

Mot. Vacate, ECF No. 1049, Mar. 9, 2011, United States v. Johnson, 5:09-CR-43-C-16
(N.D. Tex.).
10

Order, ECF No. 7, Johnson v. United States, 5:11-CV-49-C (N.D. Tex.).

11

Mot. Vacate, ECF No. 1092, June 25, 2014, United States v. Johnson, 5:09-CR-43-C16 (N.D. Tex.).
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successive petition for relief.12 The instant petition followed.
In his petition, Johnson maintains that the indictment failed to state an offense. He also
asserts that, based on the Supreme Court’s opinion in Descamps v. United States, 133 S. Ct. 2276
(2013), his prior state-court convictions provided an inadequate predicate for the Court to
determine he was a career offender. He asks the Court to provide him with appropriate relief.13
LEGAL STANDARD
“A section 2241 petition for habeas corpus on behalf of a sentenced prisoner attacks the
manner in which his sentence is carried out or the prison authorities’ determination of its
duration.”14 To prevail, a § 2241 petitioner must show that he is “in custody in violation of the
Constitution or laws or treaties of the United States.”15 A § 2241 petitioner may make this attack
only in the district court with jurisdiction over his custodian.16 By contrast, a motion to vacate,
set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 “‘provides the primary means of
collateral attack on a federal sentence.’”17 Thus, relief under § 2255 is warranted for errors that
occurred at trial or sentencing.18 A § 2255 petitioner may only bring his motion in the district of
12

Pet’r’s Pet. 7, ECF No. 1-1, Aug. 19, 2015.

13

Id. at 53.

14

Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citations omitted).

15

28 U.S.C. § 2241(c) (2012).

16

United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992).

17

Pack, 218 F.3d at 451 (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)).

18

See Cox, 911 F.2d at 1114 (5th Cir. 1990) (“The district court’s dismissal of these
grounds clearly was proper because they concerned alleged errors that occurred at sentencing
and, therefore, may be remedied under section 2255.”); Ojo v. INS, 106 F.3d 680, 683 (5th Cir.
1997) (“Because all of the errors Ojo alleges [occurred before or during sentencing], they must
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conviction and sentence.19
Section 2255 does contain a “savings clause” which acts as a limited exception to these
general rules. It provides that a court may entertain a petition for writ of habeas corpus
challenging a federal criminal conviction if it concludes that filing a motion to vacate, set aside
or correct sentence pursuant to § 2255 is inadequate to challenge a prisoner’s detention.20
Furthermore, a petitioner must satisfy a two-prong test before he may invoke the “savings clause”
to address errors occurring at trial or sentencing in a petition filed pursuant to § 2241:
[T]he savings clause of § 2255 applies to a claim (I) that is based on a
retroactively applicable Supreme Court decision which establishes that the
petitioner may have been convicted of a nonexistent offense and (ii) that was
foreclosed by circuit law at the time when the claim should have been raised
in the petitioner’s trial, appeal, or first § 2255 motion.21
A petitioner must prove both prongs to successfully invoke the savings clause.22 Thus, § 2241 is
not a mere substitute for § 2255, and a petitioner bears the burden of showing that the § 2255

be addressed in a § 2255 petition, and the only court with jurisdiction to hear that is the court that
sentenced him.”); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131 (5th Cir. 1987) (explaining
that, because defendant’s claims attacked the constitutionality of his conviction and proof of his
claims would undermine the validity of his conviction, his exclusive initial remedy was a motion
under§ 2255).
19

Pack, 218 F.3d at 452.

20

See 28 U.S.C. 2255(e) (“An application for a writ of habeas corpus in behalf of a
prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be
entertained if it appears that the applicant has failed to apply for relief, by motion, to the court
which sentenced him, or that such court has denied him relief, unless it also appears that the
remedy by motion is inadequate or ineffective to test the legality of his detention.”) (emphasis
added).
21

Reyes-Requena v. United States, 243 F.3d 893, 904 (5th Cir. 2001).

22

Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005).
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remedy is inadequate or ineffective.23
With these principles in mind, the Court turns to Johnson’s claims.
ANALYSIS
In his petition, Johnson first challenges his guilty-plea conviction for distributing
methamphetamine and aiding and abetting by attacking the validity of the indictment. Clearly,
this claim relates to alleged errors which occurred before his sentencing and not to the manner in
which his sentence is being executed. As discussed above, a § 2255 motion, not a § 2241
petition, “provides the primary means of collateral attack on a federal sentence.”24 A petitioner
may proceed with an attack on the validity of a conviction and sentence in a § 224l petition only
if he can meet both prongs of the stringent test for the § 2255(e) “savings clause.”25
The first prong of the test is, essentially, an “actual innocence” requirement whose “core
idea is that the petitioner may be have been imprisoned for conduct which was not prohibited by
law.”26 To meet the first prong, a petitioner must rely on a retroactively applicable Supreme
Court decision which establishes that he may have been convicted of a nonexistent offense.27
Johnson fails to provide any support which satisfies this first requirement. Specifically,
he does not identify a retroactively applicable Supreme Court decision which supports his claim.

23

Reyes-Requena, 243 F.3d at 901 (citing Pack, 218 F.3d at 452; Kinder v. Purdy, 222
F.3d 209, 214 (5th Cir. 2000)).
24

Pack, 218 F.3d at 451 (quoting Cox, 911 F.2d at 1113).

25

Kinder, 222 F.3d at 212.

26

Reyes-Requena, 243 F.3d at 903.

27

Id. at 904.
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Therefore, since Johnson’s claim does not meet the stringent requirements of the savings clause,
the Court will not allow him to proceed with this claim pursuant to § 2241.
Johnson then argues his prior state-court convictions provided an inadequate predicate for
the Court to determine he was a career offender. Johnson relies on Descamps v. United States,
133 S. Ct. 2276 (2013), to support his contention that the Court should not have considered his
first degree felony convictions in Cause Number F0434640HL in Criminal District Court of
Dallas County, and in Cause Number 2000-435202 in the 364th District Court of Lubbock
County, Texas, for unlawfully possessing methamphetamine with the intent to distribute when it
determined he was a career offender. In Descamps, the Supreme Court clarified the test used in
Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005),
to determine whether a prior conviction constituted a violent felony for the purposes of the
Armed Career Criminal Act.28 However, the Supreme Court resolved Descamps on direct, rather
than collateral review, and it did not declare that the new rule applied retroactively for a
collateral attack. A new rule of constitutional procedure decided after a defendant’s conviction
becomes final generally may not be applied to that defendant's case on collateral review.29 While
there are two exceptions, Descamps does not fall within them.30 Descamps does not announce a
new rule that places individual conduct beyond the power of the United States to punish, or that

28

Descamps, 133 S.Ct. at 228 1-82 (holding the modified categorical approach is only
appropriate for divisible statutes that set forth several offenses with discrete elements).
29

Teague v. Lane, 489 U.S. 288, 310-311 (1989).

30

See Schriro v. Summerlin, 542 U.S. 348, 351-352 (2004) (summarizing Teague’s
retroactivity rule).
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prohibits the imposition of any type of punishment.31 In addition, the rule announced Descamps
does not qualify as a “watershed rule of criminal procedure, implicating the fundamental fairness
and accuracy of the criminal proceeding.”32 Therefore, Descamps does not apply retroactively,
and the “savings clause” is inapplicable to this claim.33
The Court finds, therefore, that Johnson does not rely on a retroactively applicable
Supreme Court decision which establishes that he may have been convicted of a nonexistent
offense. Since Johnson’s claim does not meet the stringent requirements of the savings clause,
the Court will not allow him to proceed with this action pursuant to § 2241.
Moreover, the Fifth Circuit has held that “[t]his Court and other Courts of Appeals have
consistently noted that ‘a prior unsuccessful [section] 2255 motion is insufficient, in and of itself,
to show the inadequacy or ineffectiveness of the remedy.’ ”34 The Court finds that Johnson’s
vague assertion that § 2255 is an inadequate or ineffective means of attacking his current
confinement is unpersuasive.
CONCLUSION AND ORDERS
As stated above, 28 U.S.C. § 2241 does not provide the authority for the Court to address
Johnson’s claims. The Court will, therefore, dismiss Johnson’s petition as frivolous, and to the
extent that Johnson’s petition may be construed as a § 2255 motion, the Court will dismiss it

31

Id. at 352

32

Id. (internal quotation marks and citations omitted).

33

Baker v. Chapa, 578 F.App’x 464 (5th Cir. 2014).

34

Pack, 218 F.3d at 452 (quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979)).
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with prejudice for lack of jurisdiction.35 Accordingly, the Court enters the following orders:
IT IS ORDERED that Johnson’s pro se petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that all pending motions in this cause, if any, are
DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.
SIGNED this 27th day of August 2015.

______________________________________
KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

35

Ojo v. INS, 106 F.3d 680, 683 (5th Cir. 1997)
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