Jerry Johnson v. UNITED STATES OF AMERICA

Filing 11

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION [DKT. NO. 6 , DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION [DKT. NOS. 5 ; 8 ; 9 , DENYING AND DISMISSING § 2255 PETITION WITH PREJUDICE [DKT. NO. 1 , AND DENYING CERTIF ICATE OF APPEALABILITY. Further the Court OVERRULES the Petitioner's 7 Objections. The Clerk is directed to dismiss this case, with prejudice and to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 6/9/17. (To PS Petitioner via cert. mail)(mh) (Additional attachment(s) added on 6/9/2017: # 1 Certified Mail Return Receipt) (mh).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JERRY JOHNSON,
Petitioner,
v.

CIVIL ACTION NO. 1:16CV133
CRIMINAL ACTION NO. 1:07CR104-05
(Judge Keeley)

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
The petitioner, Jerry Johnson (“Johnson”), filed a Motion Under
28

U.S.C.

§

2255

to

Vacate,

Set

Aside,

or

Correct

Sentence

(“Petition”), arguing that he is actually innocent of the career
offender enhancement that the Court applied pursuant to United States
Sentencing Guideline § 4B1.1. Pending for review is the Report and
Recommendation (“R&R”) of the magistrate judge recommending that the
Court deny and dismiss the Petition. For the reasons that follow, the
Court ADOPTS the R&R (Dkt. No. 6).
I. BACKGROUND
A.

Prior Proceedings1
On January 22, 2008, Johnson pleaded guilty to one count of

aiding and abetting in the distribution of cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The Pre-Sentence Report
(“PSR”) determined that Johnson was eligible for the career offender

1

Criminal Action No. 1:07cr104.

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
enhancement pursuant to U.S.S.G. § 4B1.1 because (1) he was 18 years
or older at the time of the offense, (2) the offense was a felony
involving a controlled substance, and (3) he had at least two prior
felony convictions for a crime of violence or a controlled substance
offense (Dkt. No. 217 at 8).2 Although the PSR calculated a total
guideline

range

of

151

to

188

months

of

imprisonment,

at

the

sentencing hearing the Court varied down significantly and imposed a
sentence of five years of probation (Dkt. No. 218 at 1-2).
After Johnson began his sentence of probation on March 27, 2009,
he was arrested in Morgantown, West Virginia, on November 12, 2009,
and

charged

conduct,

the

with

attempted

United

States

abduction.
Probation

Due

to

Office

his

new

sought

criminal

to

revoke

Johnson’s probation (Dkt. No. 237). The Court held a final revocation
hearing on April 26, 2010, revoked Johnson’s probation,

and imposed

a sentence at the low end of the original guideline range of 151

2

Under the 2007 Sentencing Guidelines used in the PSR, a “crime
of violence” included offenses that had “as an element the use,
attempted use, or threatened use of physical force against another,”
certain enumerated offenses not applicable here, or crimes that
“otherwise involve conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. § 4B1.2(a). A “controlled
substance offense” included offenses “punishable by imprisonment for
a term exceeding one year, that prohibit[] the possession of a
controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense.” Id. § 4B1.2(b).

2

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
months of incarceration, followed by 3 years of supervised release
(Dkt. No. 279).
Johnson appealed the revocation of his probation, arguing that
his sentence of 151 months was “plainly unreasonable.” However, the
Court of Appeals for the Fourth Circuit affirmed his sentence,
concluding

that

it

was

both

“procedurally

and

substantively

reasonable.” United States v. Johnson, 427 F. App’x 276 (4th Cir.
2011)

(unpublished

decision).

The

Supreme

Court

later

denied

Johnson’s petition for a writ of certiorari. Johnson v. United
States, 132 S.Ct. 530 (2011).
On March 15, 2012, Johnson filed his first § 2255 motion in
which he raised the following grounds for relief: (1) his Florida
attorney was ineffective for advising him to plead guilty to two
state charges in 2003; (2) his federal attorney was ineffective for
failing to meaningfully investigate his criminal history, causing him
to be sentenced as a career offender; and (3) he was actually
innocent of the Florida controlled substance offenses that formed the
basis of his career offender enhancement. Id. at 4-7. On June 11,
2013, the Honorable John P. Bailey, United States District Judge,
denied the petition based primarily on the fact that in his plea
agreement Johnson had waived his right to collateral review (Dkt. No.

3

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
428). The Fourth Circuit denied a certificate of appealability on
October 25, 2013 (Dkt. No. 443).
Johnson filed a second § 2255 motion on June 2, 2014 (Dkt. No.
446), arguing that he was actually innocent of the career offender
enhancement in light of Descamps v. United States, 133 S.Ct. 2276
(2013). Noting that Johnson had failed to seek approval from the
Fourth Circuit before filing a second or successive § 2255 petition,
the Court concluded that it lacked jurisdiction over the case and
dismissed the petition (Dkt. No. 462 at 7-8). The Fourth Circuit
denied a certificate of appealability (Dkt. No. 470).
Thereafter, on May 18, 2016, Johnson moved to reopen his first
§ 2255 proceeding in an effort to challenge his career offender
enhancement on the basis of Descamps and Johnson v. United States,
135 S.Ct. 2251 (2015) (Dkt. No. 474). The Court determined that the
motion was “in substance a successive habeas petition” and thus
denied Johnson’s motion as a successive § 2255 petition.

It also

notified him that the statute of limitations would soon expire for
bringing a claim pursuant to Johnson. Id. at 4.
B.

§ 2255 Petition
On June 23, 2016, a panel of the Fourth Circuit authorized

Johnson to file the instant second or successive § 2255 motion,

4

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
challenging his eligibility for the career offender enhancement (Dkt.
No. 477). Our circuit reasoned that “Johnson has made a prima facie
showing that the new rule of constitutional law announced in Johnson
v.

United

States,

135

S.Ct.

2551

(2015),

and

held

to

apply

retroactively to cases on collateral review by Welch v. United
States, 136 S.Ct. 1257 (2016), may apply to his case.” Id. at 1.
Johnson’s

Petition

raises

two

issues

regarding

his

career

offender enhancement: (1) whether Johnson’s prior robbery conviction
qualifies as a “crime of violence” after Johnson and Welch; and (2)
whether Johnson’s two prior convictions for possession of cocaine
with intent to sell, in violation of Fla. Stat. § 893.13(1)(a)(2),
qualify as controlled substance offenses after Welch and Descamps
(Dkt. No. 1 at 4). Johnson seeks to have the Court set aside his
plea, vacate his sentence, and discharge him from custody. Id. at 16.
C.

R&R and Objections
In his R&R, the magistrate judge acknowledged that the Supreme

Court’s holding in Johnson may have implications for some prisoners
sentenced as career offenders (Dkt. No. 6 at 7). He declined to reach
the Johnson argument, however, instead reasoning that Johnson’s
career offender status has a sufficient basis in “at least two
convictions involving a controlled substance.” Id. He therefore

5

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
recommended that the Court deny and dismiss Johnson’s Petition. Id.
at 8.3
On July 25, 2016, Johnson filed timely objections to the R&R,
providing more specific reasons as to why his robbery and drug
convictions should not qualify as predicate offenses under the career
offender guideline (Dkt. No. 7). Thereafter, he also filed a motion
to amend his Petition to include an ineffective assistance of counsel
claim (Dkt. No. 8), as well as a motion to supplement the Petition
with additional authority (Dkt. No. 9).
II. STANDARD OF REVIEW
A.

Magistrate Judge’s R&R
When reviewing a magistrate judge’s R&R made pursuant to 28

U.S.C. § 636, the Court must review de novo only the portions of the
R&R to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C).
Otherwise, “the Court may adopt, without explanation, any of the
magistrate judge’s recommendations to which the prisoner does not
object.” Dellacirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04

3

On July 8, 2016, Johnson moved for an extension of time to
amend his Petition (Dkt. No. 5). The R&R recommended that this motion
be denied as moot because no amendment can save the Johnson claim
(Dkt. No. 6 at 8). Johnson subsequently presented the proposed
amendments in his objections and motion to amend (Dkt. Nos. 7; 8),
which the Court considers later in this Opinion.

6

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983)). Courts will uphold those portions of a recommendation to
which no objection has been made unless they are “clearly erroneous.”
See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
B.

Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.

Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A pro se petition is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state
a valid claim on which the petitioner could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the petitioner’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. APPLICABLE LAW
Pursuant to 28 U.S.C. § 2255(a), a prisoner may move his
sentencing court to vacate, set aside, or correct his sentence on
“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

7

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” Second or successive motions such as
Johnson’s must be certified by a court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.
Id. § 2255(h).
The court of appeals may only grant authorization to file a
second or successive application if “the application makes a prima
facie showing that” it satisfies the above standard. 28 U.S.C.
§ 2244(b)(3)(C). The Fourth Circuit screens applications to determine
only whether they contain “any claim that satisfies the requirements”
of § 2255(h). United States v. Winestock, 340 F.3d 200, 205 (4th Cir.
2003). Once a prisoner receives authorization, the district court
must “examine each claim and dismiss those that are barred” by
§ 2255(h).4 Id.

4

Johnson argues that he should not be subject to this limitation
because, in his first § 2255 proceeding, the Court failed to comply
with Castro v. United States, 540 U.S. 375 (2003), which requires
district courts to warn a petitioner before characterizing a filing
as his first § 2255 motion (Dkt. No. 1 at 2-3). This argument is

8

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
IV. DISCUSSION
For the reasons that follow, Johnson’s claim based on Johnson v.
United States is no longer viable after the Supreme Court’s decision
in Beckles v. United States. Moreover, his remaining arguments
concerning Descamps v. United States and ineffective assistance of
counsel are barred by the limitations of § 2255(h).
A.

Claim One: Johnson v. United States
According to Johnson, after the Supreme Court’s decisions in

Johnson

and

Welch,

his

robbery

conviction

should

no

longer

be

considered a crime of violence under the career offender guideline
(Dkt. Nos. 1 at 4; 7 at 3).5 In Johnson, the Supreme Court considered

unavailing because Johnson filed his first § 2255 motion on the
court-approved
form
for
such
motions.
The
Court
did
not
recharacterize any filing as Johnson’s first § 2255 motion (Crim.
Action No. 1:07cr104, Dkt. No. 365).
5

In support of this argument, Johnson also cites United States
v. Mikalajunas, 186 F.3d 490 (4th Cir. 1999). He apparently intends
to assert either that he has not procedurally defaulted his claims or
that he has been subjected to a “miscarriage of justice” cognizable
on collateral review (Dkt. No. 7 at 4, 7). See Mikalajunas, 186 F.3d
at 492-96. The doctrine of procedural default generally prevents a
petitioner from raising claims in habeas that he failed to raise on
direct review. Bousley v. United States, 523 U.S. 614, 622 (1998).
Here, procedural default is inapplicable because § 2255(h) only
permits second and successive petitions on the basis of “newly
discovered evidence” or a “new rule of constitutional law.” 28 U.S.C.
§ 2255(h) (emphasis added); accord Owens v. Jett, 2011 WL 4860171 (D.
Minn. Sept. 12, 2011) (“Procedural default never arises in successive
§ 2255 petitions because § 2255(h) only permits certification for

9

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
a vagueness challenge to the Armed Career Criminal Act (“ACCA”),
which imposed enhanced penalties on certain offenders with three or
more convictions for a “violent felony.” 135 S.Ct. at 2555. The ACCA
defined the term “violent felony” to include those that “involve[]
conduct that presents a serious potential risk of physical injury to
another.” Id. (citing 18 U.S.C. § 924(e)(2)(B)). Reasoning that this
“residual

clause”

involved

too

much

uncertainty

about

“how

to

estimate the risk posed by a crime,” and how much risk sufficed to
qualify a felony as violent, the Supreme Court declared the clause
unconstitutionally vague. Id. at 2557-59. Thereafter, in Welch v.
United States, the Supreme Court held that Johnson “is a substantive
decision that is retroactive in cases on collateral review,” thus
entitling

petitioners

to

challenge

their

ACCA

residual

clause

enhancements through second and successive petitions under § 2255(h).
See Welch, 136 S.Ct. at 1261.
Notably, the language of the ACCA’s invalidated residual clause
can also be found in the residual clause of the career offender

‘new evidence’ and ‘a new rule of constitutional law.’”). Moreover,
because Johnson relies on new law, rather than new evidence, the
stringent limitation of § 2255(h)(2), not the “miscarriage of
justice” exception, governs the availability of relief in this case.
See United States v. MacDonald, 641 F.3d 596, 610-15 (4th Cir. 2011)
(noting that § 2255(h)(1) is the successor of the miscarriage of
justice exception).

10

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
provision

of

the

2007

Johnson’s

sentence.

Sentencing

Under

Guidelines

U.S.S.G.

§

used

4B1.2(a)(2),

to

calculate

“crime[s]

of

violence” include offenses that “otherwise involve[] conduct that
presents a serious potential risk of physical injury to another.”
Johnson argues that, because the ACCA residual clause was invalidated
as unconstitutional in Johnson, his prior robbery conviction should
not be considered a “crime of violence” under the identical Guideline
residual clause (Dkt. Nos. 1 at 4; 7 at 3).
Consistent with Fourth Circuit precedent, see In re Hubbard, 825
F.3d 225 (2016), our court of appeals authorized Johnson to file a
successive § 2255 petition on the basis of this argument (Dkt. No.
477). Indeed, at the time of authorization, Johnson had “made a prima
facie showing” that Johnson “may apply to his case.” Id. at 1. That
argument has now been foreclosed by the Supreme Court’s decision in
Beckles v. United States, 137 S.Ct. 886.
In Beckles, which presented the same argument Johnson presents
here,
§

the

Supreme

4B1.2(a)(2)

is

Court

not

void

held
for

that

the

vagueness

residual
because

clause

“the

in

advisory

Guidelines are not subject to vagueness challenges under the Due
Process Clause.” Id. at 890. Therefore, because Johnson cannot
demonstrate that the new rule of constitutional law announced in

11

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Johnson is applicable to his case, he is not entitled to relief in
this second and successive petition. See § 2255(h).
B.

Claim Two: Descamps v. United States
Johnson next argues that his Florida convictions for possession

of cocaine with intent to sell, in violation of Fla. Stat. § 893.13,
should not have been considered controlled substance offenses under
the career offender guideline (Dkt. Nos. 1 at 4; 7 at 3, 7). More
particularly, Johnson contends that the Florida statute is not
divisible, and thus not subject to application of the modified
categorical approach (Dkt. No. 7 at 3, 7). Because Johnson does not
present any “newly discovered evidence,” this claim must be founded
in a “new rule of constitutional law, made retroactive to cases on
collateral review.” See 28 U.S.C. § 2255(h).
Johnson relies on the Supreme Court’s decision in Descamps v.
United States, which clarified when courts may apply the modified
categorical approach to assess whether a prior conviction qualifies
as a predicate offense under the ACCA (Dkt. Nos. 1 at 4; 7 at 3).
Descamps,

133

S.Ct.

at

2281-82.

His

reliance

on

Descamps

is

unavailing, however, as that decision did not announce a “new rule of
constitutional law.” As courts of appeals have widely recognized, the
decision merely clarified the existing statutory interpretation of

12

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
the

ACCA.6

Therefore,

Johnson’s

second

claim

is

barred

by

the

limitations of § 2255(h) because it is not based in any new evidence
or new rule of constitutional law.7
C.

Motion to Amend: Ineffective Assistance of Counsel
Finally, in his motion to amend, Johnson seeks to add a claim

that he received ineffective assistance of counsel in connection with
his sentencing (Dkt. No. 8). Pursuant to Fed. R. Civ. P. 15(a), leave
to

amend

should

“be

freely

given

when

justice

so

requires.”

6

As recognized by the Supreme Court and other circuits,
“Descamps did not announce a new rule - its holding merely clarified
existing precedent.” Mays v. United States, 817 F.3d 728 (11th Cir.
2016) (citing Descamps, 133 S.Ct. at 2283, 2285; Ezell v. United
States, 778 F.3d 762, 763 (9th Cir. 2015); United States v. Davis,
751 F.3d 769, 775 (6th Cir. 2014)); see also In re Jackson, 776 F.3d
292, 296 (5th Cir. 2015); United States v. Hawkins, 614 F. App’x 580,
582 n.2 (3d Cir. 2015) (unpublished decision). “Descamps did not
announce a new rule of constitutional law - it merely clarified, as
a purely statutory matter, when prior convictions qualify as violent
felonies under the ACCA.” United States v. Scott, 594 F. App’x 560,
561 (10th Cir. 2015) (unpublished decision). In his motion to
supplement, Johnson further directs the Court to Mathis v. United
States, 136 S.Ct. 2243 (2016) (Dkt. No. 9 at 2). Mathis also involved
the categorical approach and is not a “new rule of constitutional
law.” See In re Hernandez, No. 17-11989-E, 2017 WL 2350092, at *2
(11th Cir. May 31, 2017); Holt v. United States, 843 F.3d 720, 722
(7th Cir. 2016).
7

Johnson also cites Welch in support of this claim, perhaps for
the proposition that Descamps should apply retroactively to his case
(Dkt. No. 1 at 4). In light of the Court’s conclusion that Descamps
is not a “new rule of constitutional law,” it need not reach this
question.

13

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Nonetheless, the Court may deny a motion to amend if the proposed
amendment would be futile. See Ward Elecs. Serv., Inc. v. First
Commercial Bank, 819 F.2d 496, 497 (4th Cir. 1987) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). Amendment would be futile in this
case if Johnson’s ineffective assistance of counsel claim is not
subject to review under § 2255(h).
At Johnson’s sentencing hearing, the Court warned him that it
would likely impose a five-year term of incarceration if revocation
of his probation became necessary (Crim. Action No. 1:07cr104, Dkt.
No. 376 at 30). Nonetheless, when it revoked Johnson’s probation in
April 2010, the Court exercised its discretion to impose a 151-month
term of incarceration - a sentence which the Fourth Circuit affirmed
as reasonable (Crim. Action No. 1:07cr104, Dkt. No. 341). In his
motion

to

amend,

Johnson

argues

that

his

attorney

failed

to

investigate his prior convictions, failed to adequately prepare for
his probation revocation proceeding, and failed to advise him that,
should he violate the terms of his probation, he would be subject to
a sentence within the original guideline range (Dkt. No. 8 at 5, 7).
Johnson’s proposed ineffective assistance claim

is utterly

bereft of any new evidence or new rule of constitutional law that
would permit review in this proceeding. See § 2255(h). Instead, he

14

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
relies on the Court’s statements during his 2009 sentencing hearing
and 2010 probation revocation hearing, as well as letters he wrote to
his attorney in 2011 (Dkt. No. 8 at 2-5). All of these events took
place before Johnson filed his first § 2255 motion in March 2012
(Crim. Action No. 1:07cr104, Dkt. No. 365).8 Therefore, any proposed
ineffective assistance of counsel claim would be barred by the
limitations of § 2255(h), and therefore futile. See Ward Elecs., 819
F.2d at 497.
V. CONCLUSION
For the reasons discussed, none of Johnson’s claims satisfy the
stringent requirements of § 2255(h). Therefore, the Court:
1)

OVERRULES Johnson’s objections (Dkt. No. 7);

2)

DENIES his motions to amend or supplement the Petition
(Dkt. No. 5; 8; 9);

3)

ADOPTS the R&R (Dkt. No. 6);

4)

DENIES the Petition (Dkt. No. 1); and

5)

DISMISSES this case WITH PREJUDICE.

It is so ORDERED.
CERTIFICATE OF APPEALABILITY

8

Johnson challenged the assistance of counsel in his first
§ 2255 proceeding (Crim. Action No. 1:07cr104, Dkt. No. 365 at 5).

15

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
Pursuant

to

Rule

11(a)

of

the

Rules

Governing

§

2255

Proceedings, the district court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant”
in such a case. If the court denies the certificate, “a party may not
appeal the denial but may seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22.” 28 U.S.C.
foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability

in

this

matter

because

Johnson

has

not

made

a

“substantial showing of the denial of a constitutional right.” See 28
U.S.C.

§

2253(c)(2).

A

petitioner

satisfies

this

standard

by

demonstrating that reasonable jurists would find that any assessment
of the constitutional claims by the district court is debatable or
wrong, and that any dispositive procedural ruling by the district
court is likewise debatable. See Miller–El v. Cockrell, 537 U.S. 322,
336–38 (2003). Upon review of the record, the Court concludes that
Johnson has failed to make the requisite showing, and DENIES a
certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order to
counsel of record and the pro se petitioner, certified mail, return

16

JOHNSON V. USA

1:16CV133 and 1:07cr104-05

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 6], DENYING MOTIONS TO AMEND AND SUPPLEMENT PETITION
[DKT. NOS. 5; 8; 9], DENYING AND DISMISSING § 2255 PETITION WITH
PREJUDICE [DKT. NO. 1], AND DENYING CERTIFICATE OF APPEALABILITY
receipt requested, to enter a separate judgment order, and to remove
this case from the Court’s active docket.
DATED: June 9, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

17