Johnson v. Butler Law Firm

Filing 21

MEMORANDUM OPINION. See for complete details. Signed by District Judge Henry E. Hudson on 11/30/2017. (mailed copy to pro se Petitioner) (nbrow)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
COREY E. JOHNSON,

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Petitioner,
v.
BUTLER LAW FIRM,

Civil Action No. 3:17CV33-HEH

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Respondent.

MEMORANDUM OPINION
(Dismissing Successive Habeas Petition)
Corey E. Johnson, a Virginia prisoner proceeding prose, filed this action. For the
reasons set forth below, the action will be dismissed as a successive, unauthorized
petition for a writ of habeas corpus.

I. Procedural History
Johnson was convicted in the Circuit Court for the City of Richmond ("Circuit
Court") of two counts of murder and two counts of use of a firearm in the commission of
those offenses. See Johnson v. Kelly, No. 3:07CV731, 2008 WL 3992638, at *1 (E.D.
Va. Aug. 28, 2008). Johnson filed a 28 U.S.C. § 2254 petition challenging those
convictions. Id. By Memorandum Opinion and Order entered on August 28, 2008, this
Court found that Johnson procedurally defaulted his claims and denied the 28 U.S.C.

§ 2254 petition. Id. at *1-2. Thereafter, Johnson submitted a series of unsuccessful
motions for relief under Federal Rule of Civil Procedure 60(b ).

On January 18, 2017, the Court received the present action from Johnson. It was
unclear what sort of action, Johnson sought to initiate. In his submissions, Johnson
complained extensively about the representation he received during his initial federal
habeas proceedings .. By Memorandum Order entered February 2, 2017, the Court
conditionally docketed the action as a regul?tr civil action and informed him that he would
be responsible for a $350.00 filing fee and sent him the documents for obtaining leave to
proceed informa pauperis. (ECF No. 3.) Thereafter, Johnson submitted informa

pauperis affidavits wherein he clarified that he was seeking to bring a "petition for writ,"
(ECF No. 5, at 1) and "habeas corpus." (ECF No. 10.) Accordingly, by Memorandum
Order entered on May 10, 2017, the Court informed Johnson that his petition for a writ of
habeas corpus would be filed upon payment of the $5.00 filing fee. (ECF No. 17.) On
June 23, 2017, Johnson paid the $5.00 filing fee. (ECF No. 15.)
By Memorandum Order entered on August 2, 2017, the Court directed Johnson
that:
In the United States District Court for the Eastern District of
Virginia, a pro se petition for a writ of habeas corpus must be filed on a set
of standardized forms. See E.D. Va. Loe. Civ. R. 83.4(A). Accordingly,
the Clerk is DIRECTED to mail Johnson the standardized form for filing a
§ 2254 petition. The Clerk shall WRITE the civil action number for the
present action on the form. Johnson is DIRECTED to complete and
return the form to the Court within eleven (11) days of the date of
entry hereof. Johnson must state the facts that make his detention
unlawful. The Court's consideration of Johnson's grounds for habeas relief
shall be limited to the grounds and supporting facts concisely set forth on
this standardized form and on any attached pages.

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(ECF No. 16, at 2.) On August 16, 2017, Johnson filed his petition for a writ of habeas
corpus on the standardized form("§ 2254 Petition," ECF No. 18). 1

II. The Current § 2254 Petition
In his§ 2254 Petition, Johnson once again challenges his convictions for two
counts of murder and two counts of use of a firearm during the commission of a felony in
the Circuit Court. (§ 2254 Pet. 1.)2 In his § 2254 Petition, Johnson contends that he is
entitled to relief because he failed to receive the effective assistance of counsel during his
trial. (Id.)
The Antiterrorism and Effective Death Penalty Act of 1996 restricted the
jurisdiction of the district courts to hear second or successive applications for federal
habeas corpus relief by prisoners attacking the validity of their convictions and sentences
by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996)
(internal quotation marks omitted). Specifically, "[b]efore 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).

1 The
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Court employs the pagination assigned to the § 2254 Petition by CM/ECF.

Johnson lists this Court as the court that imposed the convictions that he seeks to challenge.
(§ 2254 Pet. 1.) This Court, however, has not convicted Johnson of two counts of murder and
two counts of use of a firearm during a felony. Johnson cannot avoid the bar on successive
habeas petitions simply by failing to correctly identify the court where the criminal convictions
occurred. See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). A "motion is a
second or successive [habeas] petition if it in substance or effect asserts or reasserts a federal
basis for relief from the petitioner's underlying conviction."' United States v. McCalister, 453 F.
App'x. 776, 778 (10th Cir. 2011) (alteration in original) (quoting Spitznas v. Boone, 464 F.3d
1213, 1215 (10th Cir. 2006)).
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Johnson has not received permission from the United St.ates Court of Appeals for
the Fourth Circuit to file this successive§ 2254 Petition challenging his conviction in the
Circuit Court. Accordingly, the action will be dismissed without prejudice for lack of
jurisdiction. Johnson's Motion for the Appointment of Counsel (ECF No. 19) will be
denied. The Court will deny a certificate of appealability.
An appropriate Final Order will accompany this Memorandum Opinion.

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Isl

Henry E. Hudson
United States District Judge

Date: Nov. 3o1 2.0I?
Richmond, Virginia

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