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Johnson v. United States

United States District Court, D. New Mexico

August 14, 2018

ERIC L. JOHNSON, Petitioner,


         Before the Court are various motions filed by Petitioner Eric L. Johnson. The motions fall into three categories: (a) motions to amend Petitioner's previous habeas petitions pursuant to Fed.R.Civ.P. 15 (“Motion”) (Doc. 373, supplemented by Docs. 361, 366, 367, and 431); (b) motions challenging Petitioner's conviction and/or the Court's prior 28 U.S.C. § 2255 rulings (Docs. 375, 390, 393, 403, 408, 420, 421, 425, and 430); and (c) miscellaneous motions to make a record; correct error; seal documents; appoint counsel, initiate an interlocutory appeal, and challenge prison conditions (Docs. 368, 370, 372, 397, 402, 413, 418, 422, 423, 426, 427, 428, and 429).[1]After reviewing the motions sua sponte under Habeas Corpus Rule 4(b), the Court must dismiss the success habeas claims for lack of jurisdiction and deny all other relief.

         Background and Procedural History

         On October 21, 2004, Petitioner pled guilty to possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). (Doc. 144). The Court determined Petitioner qualified as a career offender under the United States Sentencing Guidelines (“U.S.S.G.”) based on prior convictions for crimes of violence. (Doc. 235, p. 3). The crimes in question were voluntary manslaughter and being a prisoner in possession of a weapon. U.S.S.G. §§ 4B1.1(a) and 4B1.2(a)(2). Petitioner's Guideline sentence range was 360 months to life imprisonment. (Doc. 246, p. 7, 10, 29, 32-33). He received a 180 month sentence after qualifying for a downward variance. (Doc. 246, p. 37, 40).

         The Court entered Judgment on the conviction and sentence on January 26, 2009. (Doc. 224). Petitioner appealed to the Tenth Circuit, which affirmed the Judgment on May 19, 2010. (Doc. 256). Judgment on Petitioner's conviction and sentence became final no later than August 18, 2010, the first business day following the expiration of the 90-day period to seek review from the United States Supreme Court. See United States v. Prows, 448 F.3d 1223, 1227 (10th Cir. 2006) (“In the context of the one-year limitation period for filing a § 2255 motion, a criminal conviction becomes final when the Supreme Court affirms it on direct review, denies certiorari, or (in the absence of a certiorari petition) the time for filing a certiorari petition expires.”).

         Between 2011 and 2016, Petitioner filed five motions under 28 U.S.C. § 2255 to vacate his sentence. The first § 2255 motion was filed on January 12, 2011 and addressed ineffective assistance of counsel, prosecutorial misconduct, and Petitioner's inability to withdraw his plea. (Doc. 257). By an order entered October 17, 2012, the Court denied the first motion on the merits. Thereafter, the Tenth Circuit denied a certificate of appealability. (Doc. 278).

         Petitioner filed the second § 2255 petition on November 6, 2013. (Doc. 279, 280). The Court dismissed it as second or successive, finding that it was not in the interests of justice to transfer the matter to the Tenth Circuit. (Doc. 280, p. 3). Petitioner filed the third § 2255 motion in August of 2014, which was again dismissed for lack of jurisdiction. (Doc. 283, 284). The fourth § 2255 motion was filed and dismissed in 2015. (Doc. 293, 297). Petitioner filed the fifth § 2255 motion in 2016 and sought relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. 314). For the first time, the Tenth Circuit granted permission to file a successive petition. (Docs, 318). However, the claim ultimately failed after the Supreme Court issued Beckles v. United States, 137 U.S. 886 (2017), and the Court dismissed the fifth successive habeas petition. (Doc. 350). Petitioner appealed the decision and filed several additional motions with the Tenth Circuit seeking authorization to file a second or successive motion challenging his career-offender enhancement. The Tenth Circuit denied all requested relief. (Docs. 353, 384, 387, 388, 406, and 419).

         On May 22, 2017, Petitioner filed the first motion to amend Petitioner's previous habeas petitions pursuant to Fed.R.Civ.P. 15. (Doc. 373, supplemented by Docs. 361, 366, 367, and 431). Thereafter, he filed a series of motions seeking relief from, or to supplement, the prior judgments (Docs. 375, 390, 393, 403, 408, 420, 421, 425, and 430) and other motions seeking miscellaneous relief (Docs. 368, 370, 372, 397, 402, 413, 418, 422, 423, 426, 427, 428, and 429). This opinion addresses all pending motions.


         A. Motions to Amend and for Relief from Judgment

         In the motions to amend, Petitioner seeks to amend his earlier § 2255 motions pursuant to Fed.R.Civ.P. 15. (Doc. 373, p. 1-2, supplemented by Docs. 361, 366, 367, and 431). The Tenth Circuit has held that “once judgment is entered, the filing of an amended complaint is not permissible until the judgment is set aside or vacated pursuant to Fed.R.Civ.P. 59(e) or 60(b).” United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006). Rule 15 relief is therefore unavailable.

         Construed liberally, the motions to amend or for relief from judgment may seek relief under Rule 60(b) or to raise new habeas claims in a successive petition. See Nelson, 465 F.3d at 1148-1149 (Courts should construe pro se motions to amend liberally to determine whether the petitioner seeks relief under Rule 60(b) or § 2255). In determining whether to construe the filings as successive § 2255 petitions, the Court looks to the requested relief. Id. at 1149. A motion is successive where the petitioner “wishes to amend his complaint to allege that his … sentence was unlawful.” Id. See also Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (“[A] 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.”). “Conversely, it is a ‘true' 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, … or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.” Spitznas v. Boone, 464 F.3d at 1215-1216 (10th Cir. 2006).

         The motions to amend amplify Petitioner's claims that his criminal counsel rendered ineffective assistance by failing to object to the career offender enhancement. (Docs. 361, 366, 367, 373, and 431). Most other filings seeking reconsideration, supplementation, or relief from the judgment allege that Petitioner's sentence-and particularly his career offender enhancement-was unlawful. See (Doc. 375) (alleging “ineffective assistance of counsel that resulted in [Petitioner] being illegally sentenced due to the erroneous classification of petitioner as a career offender”); (Doc. 390) (seeking to “to supplement the record” “to describe how counsel … ineffectively represented defendant in case # 03-477 when counsel allowed for Mr. Johnson to be sentenced above the statutory maximum…”); (Doc. 393) (alleging “counsel Fred Jones ineffectively represented him during sentencing.”); (Doc. 403) (arguing Petitioner received ineffective assistance during sentencing and that he did not have any predicate offenses for the career offender enhancement); (Doc. 408) (challenging counsel's performance and the career offender enhancement); (Doc. 420) (arguing § 2255 counsel was ineffective in challenging his career offender enhancement); (Doc. 425) (same); (Doc. 430) (same); and (Doc. 421) (challenging counsel's performance during direct criminal appeal, and in particular counsel's failure to challenge his career offender enhancement).

         The Court therefore finds that Docs. 361, 366, 367, 373, 375, 390, 393, 403, 408, 420, 421, 425, 430, and 431 raise successive habeas claims. To the extent some motions (Docs. 420, 425, and 430) also challenge Todd Coberly's performance as habeas counsel, the Court finds there are no grounds for relief under Rules 59 or 60. Petitioners cannot succeed on an ineffective assistance claim against habeas counsel because there is “no federal constitutional right to counsel in collateral proceedings.” Weibley v. Kaiser, 50 Fed.Appx. 399, 403 (10th Cir. 2002). The Court will therefore deny Petitioner's request for relief under Rule 59 and Rule 60 and analyze his successive habeas claims below.

         B. Petitioner's Successive Habeas Claims

         “A district court does not have jurisdiction to address the merits of a second or successive § 2255 … claim until [the Tenth Circuit] has granted the required authorization.” In re Cline,531 F.3d 1249, 1251 (10th Cir. 2008). See also § 2255(h) (requiring a second or successive motion to be certified by the appropriate court of appeals). When the motion is filed without authorization, the district court may transfer the matter to the Tenth Circuit “if it determines it is in the interest of justice to do so under § 1631, or it may dismiss the motion or ...

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