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United States v. Johnson

United States District Court, S.D. Texas, Houston Division

April 17, 2019

United States of America
v.
Cheryl Reed Johnson.

          ORDER

          Gray H. Miller Senior United States District Judge.

         Pending before the Court is defendant Cheryl Reed Johnson's pro se Rule 60(b)(6) motion in this section 2255 lawsuit. (Docket Entry No. 206.) Having considered the motion, the record in this case and in defendant's other cases, public records for the Fifth Circuit Court of Appeals, and the applicable law, the Court denies and/or dismisses this motion for the reasons explained below.

         Background and Claims

          Defendant pleaded guilty to several fraud-related charges in two criminal proceedings, C.A. No. 14-cr-047-1 and C.A. No.l4-cr-575-1. Both cases were before this Court, and defendant was sentenced at a combined hearing on September 10, 2015, to serve 151 months in prison and a three-year term of supervised release. The Court denied defendant's combined section 2255 motion on November 21, 2017, and the Fifth Circuit Court of Appeals denied a certificate of appealability on August 14, 2018. United States v. Johnson, Appeal No. 17-20789 (5th Cir.).

         No further action appears on this Court's docket until April 12, 2019, when defendant's pending Rule 60(b)(6) motion was docketed.[1] Defendant raises the following four grounds for relief in the motion:

1. The Court erred in entering a Castro warning.
2. The Court "hindered" the time bar for filing a section 2255 motion.
3. The Court failed to "examine the full merit" of defendant's ineffective assistance claim as to breach of he plea agreement.
4. The Court failed to "articulate ii:s rationale for the conflicting findings" in its denial of section 2255 relief.

         The first and second grounds constitute proper grounds for relief under Rule 60(b), and are denied. The third and fourth grounds disagree with the Court's substantive rulings in its denial of defendant's section 2255 motion, and constitute unauthorized successive habeas claims that must be dismissed for lack of jurisdiction.

         Rule 60(b)(6) Analysis

         Timeliness

         Defendant argues entitlement to relief under Federal Rule of Civil Procedure 60(b)(6), which is a catch-all provision allowing relief from an order for "any other reason that justifies relief." A Rule 60(b)(6) motion must be filed within a reasonable time. Although the Rule itself provides no definition of "a reasonable time," guidance can be found in Fifth Circuit Court of Appeals precedent. In Clark v. Davis, the Fifth Circuit stated that reasonableness turns on the particular facts and circumstances of the case. 850 F.3d 770 (5th Cir. 2017). "[T]imeliness . . . i:s measured as of the point in time when the moving party has grounds to make [a Rule 60(b)] motion, regardless of the time that has elapsed since the entry of judgment." Id., quoting First RepublicBank Fort Worth v. Norglass, Inc., 958 F.2d 117, 119, 120 (5th Cir. 1992).

         As to defendant's Castro argument and i:s related limitations claim, defendant knew of the Court's Castro warning in May 2017, when the Court issued its Castro warning and served a copy on defendant. (Docket Entry No. 192.) Defendant subsequently filed a combined section 2255 due to the overlapping nature of her habeas claims. In appealing the denial of section 2255 relief, defendant did not challenge the Castro warning or its effect on limitations in her 2017 opening and 2018 amended briefing. The Fifth Circuit denied defendant a certificate of appealability on August 14, 2018, and noted that she had "move[d] this court for a certificate of appealability (COA) to appeal the district court's denial of the 28 U.S.C. § 2255 motion that she filed with respect to both of her criminal cases." Not until her motion for reconsideration on appeal, filed in September 2018, did defendant raise any issue as to the Castro warning. Defendant complained, as she does in the instant motion, that the Castro warning was erroneous and had "narrowed" her one-year limitation deadline by four months. The Fifth Circuit denied her motion for reconsideration on September 25, ...


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