United States District Court, E.D. Kentucky, Southern Division, London
MICHAEL D. JOHNSON, Petitioner,
SANDRA BUTLER, WARDEN, Respondent.
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, District Judge.
Michael D. Johnson is an inmate confined at the Federal Correctional Institution in Manchester, Kentucky. Proceeding without counsel, Johnson has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1.] Johnson has paid the $5.00 filing fee. [R. 3.]
On October 22, 2003, a criminal complaint was filed in federal court in Cincinnati, Ohio, alleging that in July 2003, Johnson had engaged in various drug trafficking and firearms offenses. On April 7, 2004, a grand jury returned an indictment charging Johnson with being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) in Count I, possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) in Count II, and possession of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) in Count III.
An August 18, 2004, superseding indictment alleged that Johnson had three prior state convictions for Escape, Aggravated Drug Trafficking and Escape, and for Failure to Comply with a Lawful Order. These prior convictions triggered the application of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), which mandates a 15-year minimum sentence for the felonin-possession charge under § 922(g) if the defendant has three prior convictions for drug trafficking offenses or violent crimes.
Shortly before trial, on March 4, 2005, the government filed an information pursuant to 21 U.S.C. § 851 indicating its intention to seek enhanced penalties against Johnson as a career criminal in light of his October 13, 1994, conviction for Aggravated Drug Trafficking in the Court of Common Pleas for Hamilton County, Ohio, Case Number B-94-02821. Because of this prior conviction, Johnson was independently subject to a 30-year maximum term of incarceration on the drug trafficking charge under § 841(a) pursuant to 21 U.S.C. § 841(b)(1)(C). Following a four-day trial, on March 11, 2005, a jury found Johnson guilty of the felon-in-possession and drug trafficking charges, but acquitted him of the § 924(c) charge.
In its sentencing memorandum, the government contended that Johnson's base offense level was 34 for his felon-in-possession and drug trafficking convictions. Further, in light of his prior convictions Johnson was considered an armed career criminal under U.S.S.G. § 4B1.4 with a criminal history category of IV, resulting in a guidelines range of 262 to 327 months. The government did note that recent cases called into question whether Johnson's prior state conviction for felony Fleeing and Eluding would qualify as one of the three predicate offenses required to apply the armed career criminal enhancement to his § 922(g) felon-in-possession conviction pursuant to 18 U.S.C. § 924(e)(1). However, the government contended that even if this were so, the result would not change. Johnson had at least two other prior state convictions - one for Escape and one for Aggravated Drug Trafficking. The government asserted that the Escape conviction qualified as a violent felony and the Aggravated Drug Trafficking conviction qualified as a felony conviction for a serious drug offense, warranting application of the career offender enhancement found in U.S.S.G. § 4B1.1. When combined with a statutory 30-year maximum for Johnson's § 841(a) drug trafficking conviction when the 21 U.S.C. § 841(b)(1)(C) enhancement is applied, application of § 4B1.1 again resulted in a guidelines range of 262-327 months. On October 3, 2005, without reaching the government's alternative argument, the trial court applied the § 924(e) enhancement and sentenced Johnson to a 262-month term of imprisonment on the firearms conviction to be served concurrently with a 120-month term of imprisonment on the drug trafficking conviction. United States v. Johnson, No. 1:04-CR-53-SSB-1 (S.D. Ohio 2004) ( Johnson I ).
On direct appeal, the Sixth Circuit affirmed Johnson's convictions, but vacated his sentence because the trial court did not state its reasons for imposing its sentence on the record. United States v. Johnson, 488 F.3d 690 (6th Cir. 2007). Following a hearing, on October 31, 2007, the trial court re-imposed the same sentence, and the Sixth Circuit affirmed on March 25, 2009.
A year later, on March 26, 2010, Johnson filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, arguing without elucidation that, among other things, intervening Supreme Court precedent established that his prior convictions for Escape and Fleeing and Eluding were not "crimes of violence" which would permit enhancement of his sentence as an armed career criminal pursuant to § 924(e). Responding to that particular claim, the government contended that it was procedurally defaulted because Johnson did not assert it on direct appeal and that it was substantively meritless even under Begay v. United States, 553 U.S. 137 (2008) and Chambers v. United States, 555 U.S. 122 (2009).
With respect to Johnson's prior state conviction for escape, the government noted that "the Indictment and Pre-Sentence Report both address incidents involving the defendant breaking [contact] with the police during an arrest. This action is far different from the walk away types of conduct.... Escape, where there has been an actual break from apprehension, is considered a violent felony. United States v. Houston, 187 F.3d 593 (6th Cir. 1999), cert. denied, 528 U.S. 1094 (2000)." Similarly, Johnson's conviction under Ohio Revised Code § 2921.331(B) - which criminalizes fleeing from or eluding police in a motor vehicle if the defendant's conduct causes a substantial risk of physical harm to persons or property - fits squarely within § 924(e)(2)(B)(ii)'s residual clause for "conduct that presents a serious potential risk of physical injury to another" under United States v. Young, 580 F.3d 373, 376-78 (6th Cir. 2009).
The trial court did not reach the merits of Johnson's Begay claim, concluding instead that he procedurally defaulted it because he did not challenge application of the ACCA on direct appeal, and denied his motion under § 2255 on February 11, 2011. [R. 87 therein, pp. 8-13] The Sixth Circuit denied Johnson a certificate of appealability for that very reason on September 26, 2011. Johnson v. United States, No. 11-3206 (6th Cir. Sept. 26, 2011) ("Johnson's ACCA argument suffers from a plain procedural bar. As the district court correctly found, Johnson procedurally defaulted the claim by failing to raise that claim during direct appeal.") ( Johnson II ).
Ten months later, on July 31, 2012, the Sixth Circuit decided Jones v. United States, 689 F.3d 621 (6th Cir. 2012). In Jones, the Sixth Circuit held that the Supreme Court's decision in Begay applied retroactively to cases on collateral review, and that Jones's conviction for reckless homicide under Kentucky law was not a "violent felony" under the Begay analysis. Id. at 624-26.
But to be entitled to substantive relief, the petitioner in Jones also had to overcome two threshold procedural hurdles: the untimeliness of his § 2255 motion by three months, and his procedural default of his claim for failure to challenge the enhancement on direct appeal. Id. at 624 n.1. As to the former, the Sixth Circuit held that Jones was entitled to equitable tolling of the running of the limitations period found in 28 U.S.C. § 2255(f) in light of his medical conditions and numerous prison transfers after Begay was decided. Id. at 627.
As to the latter, Jones's clear procedural default of the claim was excused solely because the government had expressly waived his default as an affirmative defense. Id. at 624 n.1. Absent that waiver, universally-accepted precedent required denial of the claim as procedurally defaulted because a failure to challenge ACCA predicates on direct appeal based upon their allegedly nonviolent nature was not excusable as either novel or futile prior to Begay under the standard set forth in Bousley v. United States, 523 U.S. 614, 622-23 (1998) ("futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time") (internal quotations and citation omitted). See Damon v. United States, 732 F.3d 1, 3 (1st Cir. 2013) ("Damon's acknowledged failure to object to the crime-of-violence determination either at sentencing or on direct appeal dooms his petition."); Gibbs v. United States, 655 F.3d 473, 475-76 (6th Cir. 2011); Geter v. United States, 534 F.App'x 831 (11th Cir. 2013); United States v. Miller, 539 F.App'x 874, 876 n.5 (10th Cir. 2013); United States v. Pettiford, 612 F.3d 270, 280-81 (4th Cir. 2010); Grooms v. United ...