United States District Court, N.D. West Virginia
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
M. KEELEY UNITED STATES DISTRICT JUDGE.
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).
Prior Proceedings 
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). 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
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).
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Cir. 2011) (unpublished decision).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).
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.
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).
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.
§ 2255 Petition
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.
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
R&R and Objections
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
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).
STANDARD OF REVIEW