United States v. Johnson , 274 F. App'x 392 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2008
No. 06-60303
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANDRE JORDAN JOHNSON, also known as Byrd
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:96-CR-61-1
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Andre Jordan Johnson, federal prisoner # 14891-076, appeals the district
court’s denial of habeas corpus relief pursuant to 28 U.S.C. § 2255 arguing that
his appellate counsel never informed him of his right to seek certiorari in the
Supreme Court after we affirmed his sentence on direct appeal. See United
States v. Johnson, 253 F.3d 706 (5th Cir. 2001). In support of his argument,
Johnson has submitted an affidavit averring that his counsel never informed
him of the right to seek certiorari as well as a letter from appointed counsel
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-60303
Luanne Stark Thompson written after this court’s decision in the direct appeal
informing Johnson of the affirmance and discussing the possibility of filing a
§ 2255 motion but making no mention of certiorari review.
Under this court’s Plan for Representation on Appeal Under the Criminal
Justice Act (the CJA Plan), “[a]ppointed counsel must inform the client of the
right . . . to seek certiorari review in the Supreme Court.” CJA Plan, § 6. This
court has previously granted § 2255 relief on claims that appellate counsel failed
to advise a defendant of his ability to seek certiorari review from the Supreme
Court. See Lacaze v. United States, 457 F.2d 1075, 1076 (5th Cir. 1972); Ordonez
v. United States, 588 F.2d 448, 449 (5th Cir. 1979). The Government argues that
§ 2255 relief is not appropriate because Johnson has not alleged a constitutional
violation. However, we need not find a constitutional violation to grant the relief
requested. See Lacaze, 457 F.2d at 1078-79 (granting § 2255 relief on non-
constitutional grounds). Because relief may be appropriate pursuant to Lacaze,
and to afford Thompson an opportunity to contest Johnson’s allegations, we
order a LIMITED REMAND to the district court for fact finding solely on the
question of whether Thompson advised Johnson of his right to seek a writ of
certiorari. Once the record is supplemented, the case shall be returned to this
court for further proceedings. Pending the district court’s compliance, this court
retains jurisdiction of this case for all other purposes.
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