United States District Court, D. New Mexico
ERIC L. JOHNSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
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).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.
and Procedural History
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).
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
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).
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).
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.
Motions to Amend and for Relief from Judgment
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
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).
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
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.
Petitioner's Successive Habeas Claims
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 ...