Johnson v. United States of America, No. 4:2016cv04090 - Document 11 (D.S.D. 2016)
Court Description: MEMORANDUM OPINION AND ORDER denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255); granting 9 United States' Motion to Dismiss; denying certificate of appealability. Signed by U.S. District Judge Karen E. Schreier on 8/18/16. (DJP)
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Johnson v. United States of America Doc. 11 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION 4:16-CV-4090-KES MICHAEL DOUGLAS JOHNSON, Petitioner, vs. MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES OF AMERICA, Respondent. Petitioner, Michael Douglas Johnson, moves to correct his sentence because of a possible Johnson claim under 28 U.S.C. § 2255. Respondent, United States of America, opposes the motion and moves to dismiss petitioner’s motion. Docket 9. For the following reasons, the court denies petitioner’s petition. BACKGROUND Petitioner entered a plea of guilty to one count of felon in possession of firearms under 18 U.S.C. § 922(g)(1). In petitioner’s presentence report, the base offense level was calculated to be 20, 2 points were added because a firearm was stolen, 4 points were added because petitioner used or possessed the firearm in connection with another felony offense, and no Chapter Four enhancements were applied. PSR at ¶¶ 18, 19, 20, 25. Petitioner’s base offense level was determined to be a level 20 under USSG § 2K2.1(a)(4)(A) because he had a prior federal felony conviction in 2003 for possession with intent to Dockets.Justia.com distribute a controlled substance. PSR at ¶¶ 18, 38. Petitioner’s advisory guideline range was 70 to 87 months. Petitioner was sentenced on October 14, 2015, to 70 months in custody—the bottom of his advisory guideline range. Petitioner now moves to correct his sentence because of the new rule of constitutional law that was announced by the United States Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015). By standing order of the Chief Judge for the District of South Dakota, the Federal Public Defender was appointed to represent petitioner. The Federal Public Defender filed a notice of intent not to supplement petitioner’s pro se filing. Docket 5. The United States now moves to dismiss petitioner’s motion for failure to state a claim. Docket 9. DISCUSSION In Johnson, the United States Supreme Court addressed the application of the “residual clause” found in the Armed Career Criminal Act, at 18 U.S.C. § 924(e)(2)(B)(ii). But here petitioner was not convicted under the Armed Career Criminal Act. Additionally, no sentencing enhancements were applied to him that included residual-clause language. In determining his base offense level, the court relied on petitioner’s prior conviction for a felony controlled substance offense—not “residual clause” language. Thus, petitioner has no claim that Johnson somehow invalidated his guidelines application. Because there is no connection between the new rule announced in Johnson and petitioner’s sentencing, petitioner’s motion for a sentence correction is denied. 2 CERTIFICATE OF APPEALABILITY When a district court denies a § 2255 motion, the petitioner must first obtain a certificate of appealability before an appeal of that denial may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This certificate may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(2). A “substantial showing” is one that demonstrates “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a showing that issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). The court finds that petitioner has not made a substantial showing that his claim is debatable among reasonable jurists, that another court could resolve the issues raised in that claim differently, or that a question raised by that claim deserves further proceedings. Consequently, a certificate of appealability is denied. CONCLUSION Petitioner has not demonstrated that he is entitled to a sentence reduction under Johnson. And the court denies a certificate of appealability. Thus, it is ORDERED that Johnson’s Motion to Correct his sentence is denied (Docket 1). 3 IT IS FURTHER ORDERED that the United States’ motion to dismiss (Docket 9) is granted. IT IS FURTHER ORDERED that a certificate of appealability is denied. Dated August 18, 2016. BY THE COURT: /s/Karen E. Schreier KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE 4
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