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Johnson v. Krueger

United States District Court, S.D. Indiana, Terre Haute Division

April 18, 2018

WILLIAM ANTHONY JOHNSON, Petitioner,
v.
J. E. KRUEGER Warden, Respondent.

          ENTRY DISCUSSING PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241

          William T. Lawrence, Judge United States District Court Southern District of Indiana

         William Johnson, an inmate at the Federal Correctional Institution in Terre Haute, Indiana, was convicted of a number of crimes in the Western District of Kentucky and is serving a life sentence for those convictions. He now seeks a writ of habeas corpus under 28 U.S.C. § 2241. For the following reasons, the petition for a writ of habeas corpus is denied.

         I. Background

         Johnson's Trial and Direct Appeal

         In 2003, a jury in the Western District of Kentucky found Johnson guilty of violating the Racketeer Influenced and Corrupt Organization Act (RICO) in violation of 18 U.S.C. § 1962(c), conspiring to violate RICO in violation of 18 U.S.C. § 1962(d), uttering counterfeit obligations in violation of 18 U.S.C. § 472, and stealing or receiving stolen mail in violation of 18 U.S.C. § 1708. In 2004, Johnson pleaded guilty to three additional offenses involving firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).

         Several individuals were involved in the criminal enterprise, including Johnson (the leader), Christopher L. Stone, Curtis Hardin, David W. Dabney, and Sher Bolter. United States v. Johnson, 440 F.3d 832, 835 (6th Cir. 2006).

         Ultimately, Johnson was sentenced to an aggregate sentence of life imprisonment and ordered to pay restitution in the amount of $443, 633.07. The life sentence was based on the jury's return of a special verdict finding Johnson guilty of the murder of Sher Bolter. See 18 U.S.C. § 1963(a). Specifically, Johnson's aggregate sentence was determined as follows: life imprisonment for the RICO and RICO-conspiracy counts, 240 months for the uttering counterfeit obligations count, and 60 months for the theft or receipt of stolen mail count, to be served concurrently. He was sentenced to an additional 30 months' imprisonment on each of the firearms counts, to be served concurrently with each other, and with the other sentences.

         A separate jury convicted Stone of RICO and fraud violations. In Stone's case, unlike Johnson's, the jury was not asked and therefore did not render a special verdict as to whether Stone was involved in the murder of Sher Bolter. Nevertheless, at Stone's sentencing the court considered the evidence presented at trial and found by a preponderance of the evidence that Stone was actively involved in the murder. United States v. Johnson, 440 F.3d 832, 837-38 (6th Cir. 2006).

         Johnson's convictions were affirmed on appeal, United States v. Johnson, 440 F.3d 832, 835 (6th Cir. 2006), and the United States Supreme Court denied his petition for a writ of certiorari. Stone's case, on the other hand, was remanded for resentencing based on the then recently issued opinion in United States v. Booker, 542 U.S. 296 (2004). In Booker, the Supreme Court “extended its Sixth Amendment holding in Blakely v. Washington, 542 U.S. 296 (2004), to the federal Sentencing Guidelines, holding that any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by the plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Johnson, 440 F.3d at 847-48 (internal quotation marks and other punctuation marks omitted).

         Johnson's Post-Conviction Pleadings

         After his appeal, Johnson filed a motion for a new trial and/or re-sentencing under Rule 33 of the Federal Rules of Criminal Procedure. Johnson argued that he was entitled to a new trial based upon newly discovered evidence. The claimed newly discovered evidence included an affidavit (or affidavits) from co-defendant Stone prepared some six to eight months after Johnson's trial. United States v. Johnson, 3:02-cr-68-TBR-1 (W.D. Ky.) (“Crim. Dkt.”) 411 at 5 and 497 at 2-3. “Stone's affidavit explains the statements that he made, while being secretly recorded, that implicated Johnson in the murder of Sher Bolter.” Crim. Dkt. 497 at 3. The recorded statements were presented as evidence presented at Johnson's trial. Johnson contended that Stone's affidavit stated that Johnson did not pay Stone to murder Sher Bolter. The affidavit also purportedly asserted that Stone was not requested to testify at Johnson's trial, that he would have done so if he had been asked, and that he would not have invoked his Fifth Amendment privilege against self-incrimination if called to testify. According to Johnson, if Stone testified in accordance with his affidavit, then Johnson would not have been found guilty of a predicate act (the Bolter murder) necessary for his RICO conviction. Crim. Dkt. 497 at 3.

         Following motions to reconsider, the court reconsidered the Rule 33 motion and denied it on the merits. Crim. Dkt. 497 at 2. The Sixth Circuit affirmed the denial noting, “Stone's affidavit, at most, challenges one witness' testimony that Stone and Johnson were involved in Bolter's murder. The affidavit does not challenge the other evidence establishing Johnson's involvement in Bolter's murder or undermine the other predicate acts underlying the RICO conviction. Stone's affidavit does not warrant a new trial.” Crim. Dkt. 497 at 4.

         Johnson also filed a motion to vacate his conviction under 28 U.S.C. § 2255. Johnson v. United States, No. 3:07-cv-00432-TBR. He argued that his attorneys rendered ineffective assistance because they allegedly did not provide the United States Probation Office with Stone's affidavit(s). Johnson also claimed that both trial and appellate counsel were ineffective based on their “failure to raise a Booker defense so that, as in Stone's case, Johnson would have been entitled to a remand for re-sentencing.” Crim. Dkt. 420 at 5. The district court denied the § 2255 motion and a certificate of appealability. Crim. Dkt. 429. It reasoned that under the general verdict form used in Stone's case, it is unknown whether the jury found Stone guilty of the racketeering act of Bolter's murder. However, in Johnson's case a special verdict form was used and “the jury found Johnson guilty of 9 out of 10 racketeering acts, including the murder of Sher Bolter - a necessary jury finding to support the life sentence. Thus, because Johnson's sentence is supported by a jury rather than a judge finding of fact, the Booker defense was not applicable, see Booker, 543 U.S. 232, and counsel's performance was not deficient for the failure to raise a non-meritorious defense.” Id.

         The district court and the Sixth Circuit denied Johnson a certificate of appealability. Johnson v. United States, No. 14-6491 (6th Cir. Jun. 23, 2015). Six years after the denial of his § 2255 motion, Johnson filed a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(4) seeking relief from that ruling. Crim. Dkt. 544. He maintained that the district court did not address the following claims: that he was denied due process because he was sentenced under mandatory sentencing guidelines in violation of Booker; that his trial and appellate counsel were ineffective in not raising the Booker claim; that he was denied effective assistance of counsel at his sentencing hearing because his attorney did not present Stone's affidavits; and that his life sentence exceeded the statutory maximum sentence of 25 years for a RICO offense. The motion was denied upon a finding by the district court that the motion was untimely, and even if it were timely, the district court in fact did address Johnson's claims. Crim. Dkt. ...


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