United States v. Herbert Johnson ( 2023 )

FILED
NOT FOR PUBLICATION
JUL 18 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-17302
Plaintiff-Appellee, D.C. Nos. 2:20-cv-01102-JCM
2:14-cr-00304-JCM-
v. VCF-1
HERBERT JOHNSON,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted July 14, 2023**
San Francisco, California
Before: S.R. THOMAS, BEA, and BENNETT, Circuit Judges.
Herbert Johnson appeals the district court’s order and judgment denying his
28 U.S.C. § 2255 habeas motion to vacate his conviction and sentence for
brandishing a firearm in connection with a crime of violence in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 924(c). We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and
we review a district court’s denial of habeas relief de novo. United States v.
Ratigan, 351 F.3d 957, 961 (9th Cir. 2003). We also review whether a defendant
has waived the right to appeal or bring a collateral attack de novo. See United
States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016). We may affirm on any
ground supported by the record. Holley v. Yarborough, 568 F.3d 1091, 1098 (9th
Cir. 2009). We affirm on the ground that Johnson’s § 2255 motion is barred by the
collateral attack waiver in his plea agreement.
Johnson claims his § 924(c) conviction rests on an invalid predicate offense
because aiding and abetting a Hobbs Act robbery is not a crime of violence as that
term is defined by § 924(c)(3)(A). See United States v. Davis, 139 S. Ct. 2319,
2336 (2019) (holding the alternative “residual” definition of crime of violence,
found in § 924(c)(3)(B), is unconstitutionally vague). However, as part of his plea
agreement, Johnson waived his right to bring a collateral attack under 28 U.S.C.
§ 2255.
We ordinarily do not reach the merits of direct appeals and collateral habeas
motions brought by defendants who have knowingly and validly waived the right
to bring such claims. See Torres, 828 F.3d at 1124. Johnson does not dispute that
he voluntarily and knowingly waived collateral attack in his plea agreement.
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Rather, he argues that his claim is beyond the scope of the waiver for three reasons:
(1) his claim fits under the “illegal sentence exception” to our general rule of
enforcing plea waivers; (2) his claim raises jurisdictional questions that cannot be
waived; and (3) enforcing the waiver would result in a miscarriage of justice.
The illegal sentence exception does not apply here. While we do not enforce
otherwise valid plea waivers against claims that a sentence is illegal, id. at 1125,
we have limited that exception to genuine challenges to the legality of a sentence,
and do not apply it to claims of an illegal conviction. United States v. Goodall, 21
F.4th 555, 562–63 (9th Cir. 2021). Here, the exception does not apply because
Johnson challenges the legality of his conviction, not his sentence.
Johnson’s jurisdictional challenge also fails. An “objection that the
indictment does not charge a crime against the United States goes only to the
merits of the case,” and does not affect the court’s subject matter jurisdiction.
United States v. Cotton, 535 U.S. 625, 630–31 (2002) (quoting Lamar v. United
States, 240 U.S. 60, 65 (1916)). Johnson’s challenge to his conviction does not
affect the jurisdiction of the court.
Finally, Johnson argues that his plea waiver must be set aside to avoid a
“miscarriage of justice.” However, Johnson did not present it to the district court,
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so we decline to consider it on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052
(9th Cir. 1999).
AFFIRMED.
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