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Johnson v. Underwood

United States District Court, N.D. Texas, Dallas Division

April 2, 2018

DAVID AARON JOHNSON, Petitioner,
v.
M. UNDERWOOD, Warden, FCI Seagoville, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         By Special Order 3-251, this habeas case has been referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the petition for writ of habeas corpus under 28 U.S.C. § 2241, received on March 23, 2018 (doc. 3), should be DENIED with prejudice.

         I. BACKGROUND

         David Aaron Johnson (Petitioner), a prisoner incarcerated in the Federal Correctional Institution in Seagoville, Texas, (FCI-Seagoville), challenges his conviction and sentence under 28 U.S.C. § 2241. The respondent is M. Underwood, the Warden of FCI-Seagoville.

         On March 22, 2006, in the United States District Court for the Northern District of Texas, Lubbock Division, Petitioner was charged by superseding indictment with conspiracy to commit bank and credit union robbery in violation of 18 U.S.C. § 371 (count one); aggravated bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (counts two and three); bank robbery in violation of 18 U.S.C. § 2113(a) (count four and five); aggravated credit union robbery in violation of 18 U.S.C. § 2113(a) and (d) (counts six and eight); and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (counts seven and nine). (See No. 5:06-CR-008-C(2), doc. 55.) He pled guilty to counts eight and nine on April 27, 2006. (See id., docs. 67- 69.) On July 21, 2006, he was sentenced to 240 months'imprisonment for count eight and to 84 months' imprisonment for count nine, for a total imprisonment range of 324 months. (See id., doc. 102.)

         Petitioner filed a notice of appeal in October 2006, and it was dismissed as untimely. (See id., doc. 134); United States v. Johnson, No. 06-11113 (5th Cir. Nov. 9, 2006). In 2009, he filed a motion to vacate under 28 U.S.C. § 2255 that was dismissed as barred by the statute of limitations on December 14, 2011. Johnson v. United States, No. 5:09-CV-240-C (N.D. Tex. Dec. 14, 2011).

         Petitioner's § 2241 petition relies on the savings clause of 28 U.S.C. § 2255(e) and raises the following grounds:

(1) The robbery in count eight was not a crime of violence, so he should not have been convicted of using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) in count nine, in light of Descamps v. United States, 133 S.Ct. 2276 (2013); Mathis v. United States, 136 S.Ct. 2243 (2016); and Freeman v. United States, 564 U.S. 522 (2011);
(2) A jury should have determined whether he brandished a firearm, in light of Alleyne v. United States, 133 S.Ct. 2151 (2013);
(3) The mandatory consecutive sentence under § 924(c) (count nine) should have been taken into account in the determination of the sentence for the robbery (count eight), in light of Dean v. United States, 137 S.Ct. 1170 (2017).

(See docs. 3 at 6-7; 4 at 12-13, 21-23, 29.)

         II. SAVINGS CLAUSE

         Generally, a writ of habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle to challenge the manner in which a sentence is carried out, and claims of alleged errors that occurred at sentencing are properly raised in a motion under 28 U.S.C. § 2255. See Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (citing Padilla v. United States, 416 F.3d 424, 426 (5th Cir. 2005)). A petitioner may challenge the legality of his detention in a § 2241 petition under the “savings clause” of § 2255, however. Padilla, 416 F.3d at 426. It provides:

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the ...

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