United States v. Johnson ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 29, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2128
(D.C. Nos. 1:03-CR-00477-MV-GJF-1,
ERIC L. JOHNSON, 1:18-CV-00120-MV, 1:17-CV-00675-MV-
GJF, 1:18-CV-00574-MV-GJF, 1:18-CV-
Defendant - Appellant. 00604-MV-GJF, 1:18-CV-00708-MV-GJF)
(D. N.M.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before TYMKOVICH, Chief Judge, MATHESON and PHILLIPS, Circuit Judges.
_________________________________
Eric Lamont Johnson filed a collection of pleadings in the district court
challenging the propriety of his sentence (particularly his classification as a career
offender) and claiming he received ineffective assistance of counsel. He did not
expressly seek relief pursuant to 28 U.S.C. § 2255, instead characterizing his pleadings as
motions to amend his previous § 2255 motions pursuant to Fed. R. Civ. P. 15, motions
seeking relief from the prior judgments, and other procedural motions. The district court
treated them as unauthorized second or successive § 2255 motions and dismissed them
for lack of jurisdiction. The court also declined to transfer the matter to this court for
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Johnson to seek authorization to file a second or successive § 2255 motion and denied
Johnson’s request for a certificate of appealability (COA). Johnson now seeks a COA to
challenge the district court’s ruling. Exercising jurisdiction under 28 U.S.C. § 1291, we
deny his request for a COA and dismiss this matter.
Background
Johnson pleaded guilty to possessing a firearm during or in relation to a drug
trafficking offense. Shortly thereafter, he filed a motion to withdraw his plea, which the
district court denied. After finding that two of Johnson’s previous convictions qualified
as crimes of violence under § 4B1.1 of the United States Sentencing Guidelines, the court
classified him as a career offender and sentenced him to 180 months in prison. This court
affirmed the judgment of conviction. United States v. Johnson, 376 F. App’x 858, 859
(10th Cir. 2010).
Johnson timely filed a § 2255 motion that raised claims of ineffective assistance of
counsel1 and prosecutorial misconduct and challenged the propriety of the court’s denial
of his motion to withdraw his guilty plea. The district court denied the motion on the
merits. We denied Johnson’s request for a COA and dismissed his appeal. United States
v. Johnson, 529 F. App’x 876, 879 (10th Cir. 2013). The Supreme Court denied his
petition for certiorari. Johnson v. United States, 134 S. Ct. 1041 (2014).
1
Johnson challenged his various attorneys’ constitutional effectiveness at all
phases of the case, but as pertinent here, he claimed counsel was ineffective for failing to
advise him that he was subject to sentencing as a career criminal, raise appropriate
objections to the presentence investigation report, and make certain arguments regarding
his sentence in his post-conviction motion.
2
Since then, Johnson has filed numerous collateral attacks on his conviction and
sentence on various grounds, including the sufficiency of the evidence to support his
conviction, newly discovered evidence establishing his innocence, his claimed
incompetency, counsel’s alleged ineffectiveness, and his classification as a career
criminal. By our count, in addition to his direct appeal and appeal of the denial of his
initial § 2255 motion, Johnson has filed fourteen separate proceedings in this court alone,
including petitions seeking writs of mandamus, motions for authorization under
§ 2255(h), and petitions seeking a COA to appeal the district court’s denial of his various
§ 2255 motions, petitions under 28 U.S.C. § 2241, and a Fed. R. Civ. P. 60(b) motion that
was treated as an unauthorized second or successive § 2255 motion. We denied relief in
all but one of those proceedings, but that one was also ultimately unsuccessful, because
although we granted Johnson permission to file a second or successive petition to pursue
a claim based on Johnson v. United States, 135 S. Ct. 2551 (2015), the claim failed after
the Supreme Court issued Beckles v. United States, 137 S. Ct. 886 (2017).
Despite this court’s repeated denial of his applications for a COA and permission
to file a second or successive § 2255 motion in the district court, Johnson now seeks a
COA to appeal the district court’s dismissal of his most recent pleadings as second or
successive. This time, although Johnson reiterated many of his previous arguments, his
primary argument was that the attorneys who represented him in the various proceedings
in which he challenged his sentence and classification as a career offender, including the
§ 2255 proceeding seeking relief under Johnson, were all ineffective. The district court
construed his pleadings as seeking relief under § 2255 and dismissed them as second or
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successive.2 The court declined to transfer them to this court and denied Johnson’s
request for a COA.
Discussion
To appeal, Johnson must obtain a COA. See 28 U.S.C. § 2253(c)(1)(B); United
States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). To obtain a COA where, as here,
a district court has dismissed a filing on procedural grounds, the movant must show both
“that jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). We need not address the constitutional question if we
conclude that reasonable jurists would not debate the district court’s resolution of the
procedural one. Id. at 485.
“A § 2255 motion is one claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, . . . or [the sentence] is
otherwise subject to collateral attack.” United States v. Nelson, 465 F.3d 1145, 1148
2
The district court’s order also addressed several issues that Johnson did not
pursue in his application for a COA. Specifically, the district court (1) denied his
motions for counsel to represent him in the district court as moot; (2) denied his request
that the court intervene and prevent a forthcoming criminal charge against him in West
Virginia; (3) refused to seal his § 2255 proceedings; (4) concluded it lacked jurisdiction
to vacate a Tenth Circuit order denying his request for an interlocutory appeal; and
(5) declined to address his arguments regarding prison conditions, informing him that
those claims must be raised in a 42 U.S.C. § 1983 suit. Because Johnson does not
challenge those rulings, we do not address them.
4
(10th Cir. 2006) (internal quotation marks omitted). “It is the relief sought, not [the]
pleading’s title, that determines whether the pleading is a § 2255 motion.” Id. at 1149.
Here, all of Johnson’s pleadings, regardless of how he captioned them, raised
essentially the same claims he raised on direct appeal, in his first § 2255 motion, and in
his previous collateral attacks. Although some of his claims are presented with a
different spin (e.g., that counsel in the Johnson/Beckles proceeding was ineffective), they
nevertheless reiterate his previous claims that he should not have been classified as a
career offender, that his sentence was otherwise unlawful, and that he received ineffective
assistance of counsel.3 Our review of the record supports the district court’s conclusion
that Johnson’s claims seek relief in the nature of a § 2255 motion, and no reasonable
jurist would debate its procedural determination. Accordingly, we deny a COA4 and do
not address whether Johnson’s pleadings state a valid claim of the denial of a
constitutional right. See Slack, 529 U.S. at 485.
First, we agree with the district court’s conclusion that Johnson was not entitled to
amend his previous unsuccessful petitions under Fed. R. Civ. P. 15. See Nelson, 465 F.3d
at 1148-49 (holding that motion to amend and supplement previously denied § 2255
motion must be treated as a second or successive § 2255 motion, explaining that “once
3
Johnson’s arguments are described in more detail in the district court’s dismissal
order. Because he is proceeding pro se, we, like the district court, construe his
allegations liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
4
The district court denied Johnson’s claim that counsel in the Johnson/Beckles
proceeding was ineffective on the merits, noting that there is no constitutional right to
counsel in collateral proceedings, but we deny a COA as to that claim because it, like the
others, is a second or successive § 2255 claim.
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judgment is entered, the filing of an amended complaint is not permissible until judgment
is set aside or vacated” (internal quotation marks omitted)).
Second, to the extent Johnson characterized his pleadings as having been filed
pursuant to Fed. R. Civ. P. 60(b), the district court properly construed them as second or
successive § 2255 claims. Rule 60(b) cannot be used to “circumvent[] AEDPA’s
requirement that a new claim be dismissed unless it relies on either a new rule of
constitutional law or newly discovered facts.” Gonzalez v. Crosby, 545 U.S. 524, 531
(2005). “[A] ‘true’ 60(b) motion . . . either (1) challenges only a procedural ruling of the
habeas court which precluded a merits determination of the [§ 2255 motion]; or
(2) challenges a defect in the integrity of the federal habeas proceeding . . . .” Spitznas v.
Boone, 464 F.3d 1213, 1215-16 (10th Cir. 2006) (citation omitted). Regardless of how a
movant characterizes a motion, it should be treated as a successive § 2255 motion if it
“asserts or reasserts a federal basis for relief” from the underlying conviction. Id. at
1215. Here, the substance of Johnson’s pleadings did not challenge a procedural ruling
that prevented the district court from considering the merits of the claims in his first
§ 2255 motion, but instead asserted and reasserted challenges to the lawfulness of his
sentence. At base, his current claims are the same claims he has raised in his numerous
previous § 2255 motions and the district court properly treated them as successive § 2255
claims.
Third, we recognize that a motion is not second or successive if it asserts a claim
that did not exist when the initial § 2255 motion was filed. See In re Weathersby,
717 F.3d 1108, 1110-11 (10th Cir. 2013) (per curiam) (holding second § 2255 motion is
6
not successive if “the purported defect did not arise, or the claim did not ripen, until after
the conclusion of the previous petition” (internal quotation marks omitted)). But that is
not the case here. The “narrow exception to the bar on successive § 2255 motions for
circumstances where a particular claim cannot be raised in a defendant’s initial § 2255
motion . . . occurs where the factual basis for a claim does not yet exist—not where it has
simply not yet been discovered—at the time of a defendant’s first [§ 2255] motion.”
United States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015). None of the issues
Johnson raises here constitute a factual basis that did not yet exist when he filed his first
§ 2255 motion, and the fact that he came up with a new way to present old arguments
about his sentence does not trigger the exception to the prohibition on second or
successive § 2255 motions.
Finally, we agree with the district court’s determination that the interests of justice
did not warrant transferring Johnson’s pleadings to this court under the relevant factors
set out in In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam), and we reject
his contention, as we have in at least one of his prior filings, that his facially untimely
claims would be saved by equitable tolling principles and the new-evidence provision in
28 U.S.C. § 2255(f)(4). His claims are not newly discovered or based on new evidence—
they are simply the same claims presented with a new twist.
We conclude that reasonable jurists could not debate that the district court was
correct in treating Johnson’s current pleadings as unauthorized second or successive
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§ 2255 motions and dismissing them for lack of jurisdiction. Accordingly, we deny a
COA and dismiss this matter.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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