Johnson v. Wilson

Filing 10

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 2/5/2016. (dvanm, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MICHAEL RAY JOHNSON,
Petitioner

l:15-cv-1273(LMB)

v.

ERIC WILSON,

Respondent.
MEMORANDUM OPINION

Before the Court is Michael Ray Johnson's ("Johnson" or "petitioner") Petition for a Writ

of Habeas Corpus Under 28 U.S.C. § 2241 ("petition") [Dkt. No. 1], Oct. 2, 2015. In his petition
Johnson argues that his designation as an armed career criminal, which resulted in the fifteen

year mandatory minimum term of imprisonment being imposed, violates the Supreme Court's
recent holding in Johnson v. United States, 135 S. Ct. 2551 (2015). In its opposition, the
government argues that the Court lacks jurisdiction to consider this petition because its claims

are not cognizable under § 2241. See Response to Petition for Writ of Habeas Corpus [Dkt. No.

7], Jan. 15, 2016 ("Gov. Resp."). Johnson has filed a reply in support of his petition. Opp'n to
Response [Dkt. No. 9], Feb. 2, 2016 ("Reply"). For the reasons that follow, the petition will be
dismissesd.
I.

BACKGROUND

Johnson was indicted in the Eastern District of North Carolina on September 22, 2010 on
one count of Distribution of a Quantity of Cocaine in violation of 21 U.S.C. § 841(a)(1) and one

Johnson has filed a motion, erroneously claiming that the government did not oppose his
petition. See Motion for an Order Authorizing Mr. Johnson's Immediate Release from Prison
[Dkt. No. 8], Jan. 28. 2016 ("Motion for an Order"). That motion will be denied as moot.

count of Possession of a Firearm by a Felon in violation of 18 U.S.C. § 922(g)(1). Petition at 3;

see also Gov. Resp. at 2. He pleaded guilty to both counts on March 1, 2010. Gov. Resp. at 2. A
federal public defender was appointed to represent him throughout his criminal case. Petition at
4.

On November 8, 2011, Johnson was sentenced. Id. During sentencing, the court relied
upon three prior convictions to designate Johnson an armed career criminal pursuant to 18

U.S.C. § 924(e)(1) ("ACCA") ; all of petitioner's prior convictions were for serious drug
offenses: a state conviction from March 1990 for manufacturing cocaine and two state

convictions for possessing cocaine with the intent to sell and for selling and delivering cocaine

from February 1992 and March 1993/ Gov. Resp. at 2 (citing United States v. Johnson, No.
2:10-cr-47, Dkt. No. 71 (E.D.N.C. Jan. 9, 2013)). Johnson was sentenced to the mandatory
minimum under the ACCA of 180 months of incarceration for the possession of a firearm count
and a concurrent term of 168 months of incarceration for the distribution count. Petition at 4;
Gov. Resp. at 2.

On appeal, Johnson raised numerous challenges to his conviction and sentence, including

z According to the pertinent section of the Armed Career Criminal Act,

In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony
or a serious drug offense, or both, committed on occasions different from one another,
such person shall be fined under this title and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court shall not suspend the sentence of, or
grant a probationary sentence to, such person with respect to the conviction under section
922(g).
18 U.S.C. § 924(e)(1).

Johnson claims in his petition that he was only convicted of two serious drug offenses;
however, the record demonstrates that this is a mischaracterization. See Petition at 18-19; Gov.
Resp. at 4, n.2.

an argument that the prior convictions relied upon by the trial court did not qualify as ACCA
predicate convictions. In rejecting this argument, the Fourth Circuit explained, "Johnson's three

prior North Carolina drug convictions qualify as 'serious drug offenses' under § 924 because, at
the time of the convictions, each offense was punishable by a maximum often years'
imprisonment. Johnson's argument is thus without merit." United States v. Johnson. 490 F. App'x
566, 567 (4th Cir. 2012).

After losing his direct appeal, Johnson filed his first motion under 28 U.S.C. § 2255.
United States v. Johnson. No. 2:10-cr-47, Dkt. No. 66 (E.D.N.C. Oct. 25, 2012)). In his § 2255
motion, Johnson made the same argument about his prior offenses under the ACCA that he

raised on direct appeal, as well as an ineffective assistance of counsel argument. Id. at 5-6. The
Eastern District of North Carolina summarily rejected both arguments, dismissed the motion, and
denied granting a certificate of appealability. United States v. Johnson. No. 2:10-cr-47, Dkt. No.

75 (E.D.N.C. Apr. 23, 2013)). Johnson did not appeal that decision.
II.

DISCUSSION

In his §2241 petition, Johnson raises two arguments. First, he contends that he should not

have been designated an armed career criminal in light of Johnson.4 Second, he repeats the
argument raised in his direct appeal, that his prior convictions were insufficient predicates under
the ACCA. Petition at 8. In response, the government argues that because Johnson is unable to

show that § 2255 would be "inadequate or ineffective" for his claims, the Court accordingly

4Even if the Court had jurisdiction to entertain the petition on the merits, the claims are not a
meritorious attack on Johnson's sentence. The Supreme Court in Johnson v. United States
deemed the residual clause of the ACCA, § 924(e)(2)(B), unconstitutional. 135 S. Ct. at 2563. In
contrast, Johnson was deemed an armed career criminal under the "serious drug offense" clause,
§ 924(e)(2)(A). Accordingly, the holding in Johnson has no effect on either his designation as an
armed career criminal or the sentencing enhancement he received because of that status.

lacks jurisdiction to consider the petition under § 2241. Gov. Resp. at 4.
A. Standard of Review

A motion pursuant to 28 U.S.C. § 2255 provides the primary means of collateral attack

on the imposition of a federal conviction and sentence. Rice v. Rivera. 617 F.3d 802, 807 (4th
Cir. 2010) ("[I]t is well established that defendants convicted in federal court are obliged to seek
habeas relief from their conviction and sentences through § 2255."). The Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA") restricts the jurisdiction of the district courts to

hear second or successive applications for § 2255 federal habeas corpus relief by establishing a
"gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996). Under that gatekeeping
mechanism, "[bjefore a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order

authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
A federal inmate may not proceed under 28 U.S.C. § 2241 unless he demonstrates that

the remedy afforded by § 2255 "is inadequate or ineffective to test the legality of his detention."

28 U.S.C. § 2255 (e). For example, "attacks on the execution of a sentence are properly raised in
a § 2241 petition." In re Vial. 115 F.3d 1192, 1194 n.5 (4th Cir. 1997). Nonetheless—and of

particular importance here—the Fourth Circuit has emphasized that "the remedy afforded by §
2255 is not rendered inadequate or ineffective merely because an individual has been unable to

obtain relief under that provision or because an individual is procedurally barred from filing a §
2255 motion." Id. (internal citations omitted). As such, a federal inmate may proceed under §
2241 to challenge his conviction or sentence "in only very limited circumstances." United States

"This 'inadequate and ineffective' exception is known as 'the savings clause' to [the'
limitations imposed by § 2255." Wilson v. Wilson, No. l:ll-cv-645, 2012 WL 1245671 at *3
(E.D. Va. Apr. 12, 2012) (quoting In Re Jones. 226 F.3d 328, 333 (4th Cir. 2000)).
4

v. Poole. 531 F.3d 263, 269 (4th Cir. 2008).

The Fourth Circuit has announced a three-part test to determine whether a petition
challenging the lawfulness of a conviction or sentence can be brought under § 2241:
Section 2255 is inadequate and ineffective to test the legality of a
conviction when: (1) at the time of the conviction, settled law of this
circuit or the Supreme Court established the legality of the conviction; (2)
subsequent to the prisoner's direct appeal and first § 2255 motion, the
substantive law changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the prisoner cannot satisfy
the gatekeeping provisions of § 2255 because the new rule is not one of
constitutional law.

In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000). This test was formulated expressly to provide
a remedy for the "fundamental defect presented by a situation in which an individual is
incarcerated for conduct that is not criminal but, through no fault of his own, he has no source of
redress." Id at 333 n.3.

B. Cognizability of Petitioner's Claims Under $ 2241

The Court lacks jurisdiction to rule on Johnson's petition because neither of his claims is
cognizable under § 2241. First, Johnson cannot satisfy the Jones criteria on his first claim—that

his prior convictions were not adequate predicate offenses under the ACCA—because he cannot
show that the substantive law has changed such that the conduct that gave rise to his conviction

in this case is no longer deemed criminal. Indeed, petitioner makes no claim that he is actually
innocent of the crimes that led to his conviction and sentence; rather, he argues that the sentence

imposed on him is invalid because changes in the law have disqualified use of those prior
convictions as a basis to enhance his sentence under the ACCA. In addition, Johnson cannot

satisfy the Jones requirements for his second claim—that he should not have been designated an

armed career criminal in light of Johnson—because § 2255 is adequate to address a new rule of

constitutional law such as the one announced by the Supreme Court in Johnson.

Fourth Circuit precedent teaches without exception that the savings clause only preserves
claims of actual innocence of a conviction; it does not extend to claims of innocence of a

sentencing factor. United States v. Poole, 531 F.3d 263, 267 (4th Cir. 2008) ("Fourth Circuit

precedent has likewise not extended the reach of the savings clause to those petitioners
challenging only their sentence."). Furthermore, as the government underscores in its
opposition, § 2255 is adequate to address petitioner's second claim because Johnson announces a
new rule of constitutional law. In Teague v. Lane, the Supreme Court explained that a case

announces a new rule of constitutional law "if the result was not dictated by precedent existing at
the time the defendant's conviction became final." 489 U.S. 288, 301 (1989). The Supreme
Court's holding in Johnson that "imposing an increased sentence under the residual clause of the

Armed Career Criminal Act violates the Constitution's guarantee of due process" overruled long
standing precedent that held to the contrary. Johnson, 135 S. Ct. at 2563. As the Tenth Circuit

has reasoned, "[t]he Court [in Johnson] thus applied a constitutional principle in a decision that
was contrary to, rather than dictated by, its own precedent." In re Gieswein. 802 F.3d 1143, 1146
(10th Cir. 2015). Therefore, because Johnson announces a new rule of constitutional law, the

petitioner cannot demonstrate that his claims under this new rule of constitutional law meet the
requirement that § 2255 is "inadequate or ineffective" under Jones.

Accordingly, because Johnson's claims falls outside the § 2255 savings clause, he may
not proceed under § 2241, and the instant petition must be construed as a successive motion for
relief under § 2255. As such, it may not be brought unless certified as provided in 28 U.S.C. §
2244 by a panel of the Fourth Circuit Court of Appeals. Because no such certification has been

granted, this petition must be dismissed, without prejudice to petitioner's ability to apply to the

Fourth Circuit for the required certification to file a second or successive motion under § 2255.
Petitioner is advised that if such certification is granted, venue for his motion would lie in the

sentencing court, the United States District Court for the Eastern District of North Carolina.6
For the reasons stated above, Johnson's Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2241 [Dkt. No. 1] will be dismissed without prejudice by an appropriate Order to be
issued with this Memorandum Opinion.
Entered this rJ day of February, 2016.
Alexandria, Virginia

Leonie M. Brinkema

United Slates District Judge

6Although an application for § 2241 habeas corpus relief should befiled in the district where the
petitioner is confined, a motion to vacate under § 2255 must be filed with the sentencing court.
In re Vial 115 F.3d at 1194.