United States District Court, S.D. Indiana, Terre Haute Division
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
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
Trial and Direct Appeal
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. §
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).
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.
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).
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).
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.
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.
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.
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. ...