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United States v. Johnson

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

January 30, 2018

UNITED STATES OF AMERICA
v.
REGINAL LEVAND JOHNSON

          ORDER

          MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE

         This matter comes before the Court for consideration on Petitioner Reginald LeVand Johnson's Second or Successive Motion to Correct Sentence Under 28 U.S.C. 2255 [147]. The Government has filed a response to the motion. The court has considered the motion and response as well as the relevant case law and evidence, and is now prepared to rule.

         PROCEDURAL BACKGROUND

         Johnson was found guilty of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1), on May 31, 2006. His sentence was enhanced under the Armed Career Criminals Act (ACCA) after this court found that he had at least three convictions of violent felonies, qualifying him for ACCA enhancement. The Fifth Circuit denied his appeal on September 14, 2007.

         Relying on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Johnson (not to be confused with the Johnson in Johnson) sought to prove that he was unjustly sentenced under the ACCA, arguing that his prior convictions for robbery and armed robbery no longer qualify as violent felonies. Johnson filed his first § 2255 motion on August 21, 2008, which was subsequently denied. Johnson once again appealed to the Fifth Circuit, which subsequently denied Johnson's certificate of appealability. The Supreme Court denied Johnson's petition for writ of certiorari.

         After the denial of writ, Johnson filed a motion to reopen judgment on his first § 2255 motion, under Rule 60(b), which this Court denied. Johnson then filed a motion seeking relief, again under Rule 60(b). The Federal Public Defenders office then filed this § 2255 motion with the Court and a notice that it had filed a motion seeking authorization to pursue a successive § 2255 motion in the Fifth Circuit Court of Appeals. Attached to the notice was the exact motion filed in this court, which had also been filed with the Fifth Circuit. Johnson then filed a pro se motion to expedite ruling on the Rule 60(b) motion. The Court denied Johnson's pro se motion to expedite and transferred his Rule 60(b) motion to the Fifth Circuit.

         STANDARDS AND APPLICABLE STATUTES

         28 U.S.C.A. § 2255(h)(2) provides:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C.A. § 2244(b)(3) provides:

(A) Before 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.
(B) A motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies ...

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