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Johnson v. United States

United States District Court, N.D. Mississippi, Oxford Division

December 13, 2016

JAMES KEITH JOHNSON MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION AND ORDER

          NEAL B. BIGGERS, UNITED STATES DISTRICT JUDGE

         Movant James Keith Johnson has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. The government has responded to the motion. Having considered the pleadings and the record, including the relevant parts of the underlying criminal case, along with the relevant law, the Court finds that an evidentiary hearing is unnecessary[1], and the instant motion will be denied.

         Relevant History

         James Keith Johnson, a/k/a Thunder Eagle Ghost Dancer[2], robbed two banks in Florida on consecutive days in March, 1995. In each robbery, bank employees put dye packs in the stolen cash, which exploded and stained the stolen moneys red. On August 31, 1995, a federal jury in Florida convicted Johnson of two counts of armed bank robbery and two counts of possession of a firearm in furtherance of a violent felony. Johnson was sentenced on November 20, 1995, to a term of imprisonment of 327 months for each armed bank robbery and two consecutive 60-month terms for the possession of a firearm charges. The sentence was later reduced to a total sentence of 420 months.

         Between the bank robberies and Johnson's arrest for those robberies, he traveled to Tunica County, Mississippi, where he laundered the red-dyed currency by placing the stained money in a casino gaming machine bill validator in order to receive casino tokens, which he then exchanged for clean, unstained bills. A Northern District of Mississippi grand jury indicted Johnson on charges of money laundering and transporting stolen money across state lines. Following a June, 1996 jury trial, Johnson was found guilty on each charge. The United States Probation Service for the Northern District of Mississippi prepared a Presentence Investigation Report (“PSR”) and determined that Johnson had a Criminal History Category of VI based on 24 criminal history points. Of particular relevance to this case is the fact that Johnson's criminal history included two 1983 attempted armed bank robbery convictions out of the Circuit Court of Cullman County, Alabama, for which Johnson was assigned a total of three criminal history points. With an offense level of 20 for the money laundering offense, Johnson's United States Sentencing Guidelines range was 70-87 months. Johnson did not object to the PSR or the Guidelines calculations.

         On August 27, 1996, this Court sentenced Johnson to three concurrent 60-month terms of incarceration but ordered the terms to be served consecutively to Johnson's federal Florida sentence. Doc. #59. On its own motion, the Court departed from the Guidelines range, finding that because Johnson was “currently serving 447 months. . . in the Northern District of Florida [, a] sentence of 60 months imprisonment in the instant case, to run consecutively with the sentence imposed in Florida, is just a punishment for the overall scheme committed by the defendant.” See Judgment, “Additional Reasons for Departure from the Guideline Range” at 8.

         Johnson's Florida and Mississippi convictions were affirmed on appeal. See Docs. #60 and #63; Cause No. 5:95CR05016 (N.D. Fla.), Docs. #45 and #106. Johnson filed a §2255 motion and a motion to reduce sentence in the Northern District of Florida, both of which were denied. See Cause No. 5:95CR05016 (N.D. Fla.), Docs. #109 and #163. Johnson appealed both denials but obtained no relief on either motion. See id, Docs. #135, #165, #161, and #178.

         According to Johnson, he learned in 2015 that attempted robbery has not been a crime in Alabama since 1982. See Doc. #64 at 5. Johnson petitioned the Circuit Court of Cullman County, Alabama for vacation of his 1983 attempted robbery convictions. His petition was granted and the convictions vacated on November 13, 2015, Doc. #64-1, and December 28, 2015, Doc. #64-2.[3] Johnson filed the instant motion to vacate on or about September 27, 2016, and he filed a similar motion in the Northern District of Florida. Cause No. 5:95CR05016 (N.D. Fla.), Doc. #183. In the instant motion, Johnson argues that since an Alabama court has vacated his 1983 state-court convictions for attempted robbery, his sentence was based on an improperly-calculated federal criminal history.

         Legal Standard

         After a defendant has been convicted and exhausted his appeal rights, a court may presume that “he stands fairly and finally convicted.” United States v. Frady, 456 U.S. 152, 164 (1982). A motion brought pursuant to § 2255 is a “means of collateral attack on a federal sentence.” Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255. Collateral attack limits a defendant's allegations to those of “constitutional or jurisdictional magnitude.” United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of “constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice.” United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).

         Timeliness

         A motion filed under § 2255 must comply with the statute's one-year period of limitation, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...

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