United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
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 . 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.
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
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.
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.
AND APPLICABLE STATUTES
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 ...