United States v. Johnson

UNITED STATES OF AMERICA, v. COREY JOHNSON, Defendant.

Criminal No. 3:92cr68 (DJN)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

January 2, 2021

MEMORANDUM OPINION

(Dismissing § 2255 Petition)

Convicted serial killer Corey Johnson ("Defendant" or "Johnson") comes before the Court with a Motion Pursuant to 28 U.S.C. § 2255 Raising Claim of Ineligibility to Be Executed Under 18 U.S.C. § 3596(c) ((the "Present § 2255 Petition") (ECF No. 86)), attempting to relitigate a question decided long-ago — a question that the Court lacks jurisdiction to decide again. Specifically, the Court and the Fourth Circuit have already rejected Defendant's claim that his intellectual disability¹ precludes the Government from executing him, and only the Fourth Circuit can decide whether to revisit those decisions. Yet Defendant attempts to skirt the rules in hopes of finding a court that will stay his execution, scheduled for January 14, 2021, regardless of whether the Court has the authority to do so. Indeed, district courts generally lack jurisdiction to consider successive § 2255 petitions absent preauthorization from the Court of Appeals. This case presents no exception to that requirement. Accordingly, for the reasons stated below, the Court will dismiss Defendant's Present § 2255 Petition for want of jurisdiction.

I. BACKGROUND²

A. Factual Background

Defendant, along with Richard Tipton ("Tipton") and James Roane, Jr. ("Roane") (collectively, the "partners"), ran a substantial drug-trafficking conspiracy that lasted from 1989 through July of 1992. Roane, 378 F.3d at 389. The partners in the conspiracy obtained wholesale quantities of powder cocaine from suppliers in New York City, converted it into crack cocaine, divided it among themselves and then distributed it through a network of 30-40 street level dealers. Id. at 389-90. Typically, the partners took two-thirds of the proceeds realized from the street-level sales of their product. Id. at 390.

Over a short time in early 1992, the partners took part, in some form, in the murders of ten persons in the Richmond area. Id. These murders occurred "in relation to their drug-trafficking operation and either because their victims were suspected of treachery or other misfeasance, or because they were competitors in the drug trade, or because they had personally offended one of the 'partners.'" Id. The murders described below directly implicated Defendant.

On January 14, 1992, Roane and Johnson located Peyton Johnson, another rival drug dealer, at a tavern. Id. Shortly after Roane left the tavern, Corey Johnson entered and fatally shot Peyton Johnson with a semiautomatic weapon. Id.

On January 29, 1992, Roane pulled his car around the corner of an alley, got out and shot Louis Johnson, who had threatened one of the partners while acting as a bodyguard for a rivaldrug dealer. Id. Corey Johnson and Lance Thomas ("Thomas") then got out of Roane's car and began firing at Louis Johnson. Id. As Louis Johnson laid on the ground, either Corey Johnson or Thomas shot him twice at close range. Id. Louis Johnson died from these gunshot wounds. Id.

On February 1, 1992, Roane, Johnson and Thomas went to the apartment of Torrick Brown, who had given Roane trouble. Id. After the three men knocked on the apartment door, Brown's half-sister opened the door and summoned Brown. Id. The three men opened fire with semiautomatic weapons, killing Brown and critically wounding his half-sister. Id.

In late January 1992, after Johnson threatened Dorothy Armstrong for not paying for a supply of crack cocaine, Armstrong went to live with her brother, Bobby Long. Id. On February 1, 1992, Johnson, Tipton and Jerry Gaiters ("Gaiters") went to Long's house. Id. at 391. While Tipton waited in the car, Johnson and Gaiters approached the front door. Id. When Long opened the door, Johnson opened fire, killing Dorothy Armstrong and Anthony Carter. Id. As Bobby Long fled out the front door, Johnson shot him dead in the front yard. Id.

On February 19, 1992, Johnson arranged to meet with Linwood Chiles, who Johnson suspected of cooperating with the police. Id. That night, Chiles and Johnson drove off together in Chile's station wagon, with Curtis Thorne and sisters Priscilla and Gwen Greene also in the car. Id. Chiles parked in an alley before Tipton parked behind the station wagon and walked up beside it. Id. With Tipton standing by, Johnson told Chiles to place his head on the steering wheel before shooting him twice at close range. Id. The partners fired additional shots, killing Thorne and critically wounding the Greene sisters in the station wagon. Id.

B. Verdict and Sentencing

In January and February of 1993, then-United States District Judge James R. Spencerpresided over the trial of Defendant and his co-conspirators. Defendant³ faced capital murder charges for Murder in Furtherance of a Continuing Criminal Enterprise ("CCE") under 21 U.S.C. § 848(e)(1)(A) for seven of these killings — Peyton Johnson (Count Eight), Louis Johnson (Count Eleven), Armstrong (Count Seventeen), Carter (Count Eighteen), Long (Count Nineteen), Thorne (Count Twenty-Four) and Chiles (Count Twenty-Five) (collectively, the "Capital Murder Counts"). Id. at 391; (Second Superseding Indictment ("Indictment") (Dkt. No. 115) at 7-18). On February 3, 1993, the jury convicted him of all seven Capital Murder Counts. 378 F.3d at 391.⁴

During the penalty hearing, Defendant's expert psychologist, Dr. Dewey Cornell, testified that Defendant did not qualify as intellectually disabled, but that he tested just above that level. (May 1, 2003 Mem. Op. Denying § 2255 Petition ("First § 2255 Op.") (Dkt. No. 896) at 81.) Dr. Cornell found that Defendant had an IQ of 77. (Id.) To ensure the accuracy of his findings, Dr. Cornell rechecked his scores, consulted his colleagues, interviewed Defendant a second time, interviewed individuals involved in Defendant's life and reviewed a substantial amount of background information regarding Defendant. (Id.; Tr. of Feb. 10, 1993 Penalty Phase ("Tr.") at 3565-75.) Because Defendant's own expert did not find him intellectuallydisabled, Defendant's counsel did not argue that Defendant's intellectual disability rendered him ineligible for the death penalty. (First § 2255 Op. at 84.) However, he did argue that the same reasons underlying the prohibition against executing the intellectually disabled mitigated against the imposition of the death penalty on Defendant. (Id.)

On February 16, 1993, following the penalty hearing, the jury recommended that the Court sentence Defendant to death for all seven of the Capital Murder Counts. Roane, 378 F.3d at 392. On the Special Findings Form, the jury indicated that it had unanimously found that Defendant committed each of the seven murders "after substantial planning and premeditation." (Dkt. No. 508 at 2.) Eight of the jurors found, by a preponderance of the evidence, that Defendant's "full scale I.Q. is 77." (Dkt. No. 508 at 9.) On June 1, 1993, pursuant to 21 U.S.C. § 848(1), the Court sentenced Johnson to death for Counts Eight, Eleven, Seventeen, Eighteen, Nineteen, Twenty-Four and Twenty-Five. (Dkt. No. 593.)

However, the Court refused to order the execution on the grounds that Congress had neither directly authorized the means to carry out the death sentences, nor properly delegated to the Attorney General the authority to issue the implementing regulations that the Government invoked. Roane, 378 F.3d at 392. As a result, the Court stayed the execution of the death sentences until such time as Congress had authorized the means of execution. Id.

C. Direct Appeal

The defendants appealed their convictions and sentences and the Government cross-appealed the stay of the death sentences. Id. at 392. In a lengthy opinion, the Fourth Circuit analyzed and disposed of approximately sixty issues, including challenges by the defendants to aspects of the jury-selection process and both the guilt and penalty phases of the trial. Tipton, 90 F.3d at 868. The Fourth Circuit rejected nearly all of the claims, affirming the convictions andsentences of all of the defendants, except that it vacated on Double Jeopardy grounds the drug conspiracy convictions under 21 U.S.C. § 846. Id. at 903. Additionally, the Fourth Circuit vacated the stay of the death sentences and remanded for the executions to proceed in accordance with regulations promulgated by the Attorney General. Id. at 901-03.

D. First § 2255 Petition

On June 1, 1998, Defendant filed a petition under 28 U.S.C. § 2255 to vacate or set aside his sentences (the "First § 2255 Petition" (Dkt. No. 714)). Among other challenges to his conviction and sentence, Defendant argued that his intellectual disability precluded the Government from executing him. As part of his intellectual disability challenge, Defendant argued that his counsel had been ineffective in failing to argue at sentencing that Defendant could not be executed due to his intellectual disability. In arguing that "[u]nder federal law, a mentally retarded defendant cannot be executed," Defendant cited both 18 U.S.C. § 3596(c) and 21 U.S.C. § 848(1). (Dkt. No. 719 at 108).

In his First § 2255 Petition, Defendant did not submit any evidence from Dr. Cornell expressing doubt about his conclusions regarding Defendant's lack of intellectual disability. (First § 2255 Op. at 82.) The Court permitted multiple amendments to the First § 2255 Petition and granted Defendant "another full opportunity to demonstrate that he is mentally retarded." (Id.) Defendant submitted no new evidence regarding his intellectual disability. (Id.)

On May 1, 2003, the Court entered a lengthy opinion denying the First § 2255 Petition. The Court expressly rejected the argument that 18 U.S.C. § 3596(c) precluded the execution of Defendant on the grounds of his mental disability, because "the record before the Court demonstrates that Johnson is not mentally retarded." (First § 2255 Op....