Johnson v. United States Probation and Pretrial Services

[5] UNITED STATES DISTRICT COURT [6] WESTERN DISTRICT OF WASHINGTON AT SEATTLE [7] 8 ANTOINE D. JOHNSON , 9 Petitioner, CASE NO. 3:22-cv-05163-RSM 10 v. ORDER DISMISSING CASE 11 UNITED STATES PROBATION AND PRETRIAL SERVICES, [12] Respondent. [13] This matter comes before the Court on Petitioner Antoine D. Johnson’s pro se petition [14] for writ of habeas corpus challenging his criminal conviction in 3:09-cr-05703-RBL. Although [15] the petition uses a § 2241 form and claims Petitioner is not challenging the validity of the above [16] conviction and sentence, the brief in support of the petition cites to §2255 and demonstrates that [17] Petitioner indeed challenges this conviction. Because Petitioner’s habeas challenge is both time18 barred and successive, the Court denies this petition and DISMISSES the matter with prejudice. [19] I. BACKGROUND [20] The present habeas petition raises four grounds for relief. Ground one alleges the “Court [21] denied my claim on the basis of a prior adjudication without making specific finding that the ends [22] of justice would not be served by reaching merits.” Dkt. #1 at 6. Ground two alleges “[t]he ends [23] of justice will be served by reaching the merits” and cites to the transcript of a hearing conducted 1 on June 15, 2011, before the Honorable Robert Lasnik. Id. Ground three alleges “manifest 2 injustice – Government witness testified falsely and the prosecutor knew.” Id. Ground four alleges 3 race discrimination because he is a “Negro,” the prosecutor knew the agent lied, and because no 4 judicial officer will consider the facts or “lies.” Id. at 7. As relief, Petitioner requests an 5 “evidentiary hearing to determine whether the federal agent lied.” Id. at 7. 6 Petitioner’s attached brief is titled “2241 Petition for Writ of Habeas Corpus 7 Challenging June 11, 2015, 2255 Motion Judgment Evidentiary Hearing Requested.” Dkt. 1-2. In 8 this brief, Petitioner contends “the evidentiary hearing underlying the June 15, 2015, 2255 Motion 9 was not ‘full and fair.’” Id. at 2. The brief states, “[t]o let a brazen liar game the system to allow 10 the Government to acquire a criminal conviction is injustice.” Id at 4. Petitioner is clearly 11 challenging his federal conviction and sentence. 12 The federal conviction and sentence Petitioner challenges was resolved many years ago. 13 Petitioner was charged by complaint on January 30, 2009. Case No. 3:09-cr-05703-RBL, Dkt. #1. 14 On November 10, 2011, a jury found Petitioner guilty of numerous counts. Case No. 3:09-cr- 15 05703-RBL, Dkt. #550. On March 29, 2012, Petitioner was sentenced. Dkt. #629. Petitioner filed 16 a notice of appeal on April 2, 2012. Case No. 3:09-cr-05703-RBL, Dkt. #637. On September 10, 17 2013, a three-judge panel issued a memorandum affirming Petitioner’s conviction and sentence. 18 Case No. 3:09-cr-05703-RBL, Dkt. #698. Rehearing and hearing en banc were denied on 19 December 19, 2013, and the Circuit Court issued a mandate on January 14, 2014. Case No. 3:0920 cr-05703-RBL, Dkt. #703. 21 On December 29, 2014, Petitioner filed a § 2255 motion to vacate his conviction and 22 sentence. Case No. 3:09-cr-05703-RBL, Dkt. #707. The motion was denied on June 11, 2015. 23 Case No. 3:09-cr-05703-RBL, Dkt. #708. No appeal was taken. 1 II. DISCUSSION 2 Petitioner’s current petition is a 28 U.S.C. § 2255 challenge to his federal conviction and 3 sentence. Section 2255 provides a remedy that is commensurate with state habeas relief. Hill v. 4 United States, 368 U.S. 424, 427 (1962). Because a § 2255 motion is “commensurate” with state 5 habeas relief, it may only be used to collaterally attack a conviction and sentence “upon the ground 6 that the sentence was imposed in violation of the Constitution or laws of the United States.” 28 7 U.S.C. § 2255 ; see also United States v. Wilcox, 640 F.2d 970, 972 (9th Cir.1981) (“[Motions 8 under § 2255 are limited to:] (1) constitutional issues, (2) challenges to the district court's 9 jurisdiction to impose the sentence, (3) challenges to the length of a sentence imposed in excess of 10 the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack.”). 11 Further § 2255 generally is the sole basis for a person claiming his or her sentence violates 12 the law. It is the equivalent of a petition for writ of habeas corpus and seeks relief from the effects 13 of a federal conviction. Defendant has already utilized this method, without success. 14 A second or successive § 2255 motion may only be brought if certified by an appellate 15 court to meet certain stringent requirements, none of which are present here. The record establishes 16 Petitioner is entitled to no relief because the present habeas petition is untimely and successive. 17 A. Statute of Limitations 18 The present petition is barred by the statute of limitations. Section 2255 motions must be 19 filed within a one-year period starting on the later of: (1) the date the judgment of conviction 20 becomes final; (2) the date a government-created impediment to filing is removed; (3) the date the 21 right asserted is initially recognized; or (4) the date the facts supporting the claims become 22 discoverable. See 28 U.S.C. § 2255 (f). [23] 1 The record shows Petitioner was sentenced in 2012 and appealed on April 2, 2012. The 2 Circuit Court issued a mandate affirming on January 14, 2014. On December 29, 2014, Petitioner 3 filed a § 2255 motion to vacate his conviction and sentence. The motion was denied on June 11, 4 2015, and no appeal was taken. Petitioner submitted for filing the instant habeas petition on March 5 15, 2022, well beyond the one-year statute of limitations. 6 The record does not establish any basis that excuses the untimeliness of the instant habeas 7 petition. Petitioner attaches the transcript of an evidentiary hearing held in his criminal case in 8 2011 in support of his petition. Since he was present at the hearing there is nothing to show there 9 was a Government created impediment that prevented Plaintiff from timely filing the instant 10 petition, or that his claim involves facts he could not discover. The Court concludes the present 11 petition should be dismissed as time-barred. 12 B. Bar on Second or Successive Petitions 13 In addition to being untimely, the present habeas petition is barred as a second or successive 14 petition. A person may not file a second or successive § 2255 petition unless he or she makes a 15 prima facie showing to the appropriate court of appeals that the petition is based on: (1) “a new 16 rule,” (2) “of constitutional law,” (3) “made retroactive to cases on collateral review by the 17 Supreme Court,” (4) “that was previously unavailable.” 28 U.S.C. § 2255 (h)(2); Tyler v. Cain, [18] 533 U.S. 656, 662 (2001). Section 2255(h)(2) creates a jurisdictional bar to the petitioner’s claims: 19 “If the petitioner does not first obtain our authorization, the district court lacks jurisdiction to 20 consider the second or successive application.” Lopez, 577 F.3d at 1061. 21 This petition deals with the claim a witness lied at an evidentiary hearing. None of the 22 exceptions that allow for a second or successive habeas petition apply here. The present habeas 23 petition is thus an impermissible second or successive petition. 1 III. CERTIFICATE OF APPEALABILITY 2 A prisoner seeking post-conviction relief under § 2255 may appeal a district court’s 3 dismissal of the petition only after obtaining a certificate of appealability (“COA”) from a district 4 or circuit judge. A COA may be issued only where a petitioner has made “a substantial showing 5 of the denial of a constitutional right.” See 28 U.S.C. § 2253 (c)(3). A prisoner satisfies this 6 standard “by demonstrating that jurists of reason could disagree with the district court’s resolution 7 of his constitutional claims or that jurists could conclude the issues presented are adequate to 8 deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 9 Under this standard, the Court finds that no reasonable jurist would disagree that 10 petitioner’s habeas petition is a § 2255 petition challenging his convictions and sentence and that 11 it is barred by the statute of limitations and the prohibition on second or successive petitions. 12 IV. CONCLUSION 13 Having considered Petitioner’s motion and the remainder of the record, the Court hereby 14 finds and ORDERS that Petitioner’s Motion under § 2255 (Dkt. #1) is DENIED. No Certificate 15 of Appealability shall issue. This case is CLOSED. 16 DATED this 22nd day of March, 2022. [18] A [19] RICARDO S. MARTINEZ 20 CHIEF UNITED STATES DISTRICT JUDGE