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Johnson v. United States

United States District Court, N.D. West Virginia

June 9, 2017

JERRY JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 1:16CV133

          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

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE.

         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 Proceedings [1]

         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 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 with attempted abduction. Due to his new criminal conduct, the United States Probation Office sought 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 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.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, 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 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 ...


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