United States District Court, E.D. Virginia, Richmond Division
COREY E. JOHNSON, Petitioner,
BUTLER LAW FIRM, Respondent.
MEMORANDUM OPINION (DISMISSING SUCCESSIVE HABEAS
E. Hudson United States District Judge
E. Johnson, a Virginia prisoner proceeding pro se,
filed this action. For the reasons set forth below, the
action will be dismissed as a successive, unauthorized
petition for a writ of habeas corpus.
was convicted in the Circuit Court for the City of Richmond
("Circuit Court") of two counts of murder and two
counts of use of a firearm in the commission of those
offenses. See Johnson v. Kelly, No. 3:07CV731, 2008
WL 3992638, at *1 (E.D. Va. Aug. 28, 2008). Johnson filed a
28 U.S.C. § 2254 petition challenging those convictions.
Id. By Memorandum Opinion and Order entered on
August 28, 2008, this Court found that Johnson procedurally
defaulted his claims and denied the 28 U.S.C. § 2254
petition. Id. at *l-2. Thereafter, Johnson submitted
a series of unsuccessful motions for relief under Federal
Rule of Civil Procedure 60(b).
January 18, 2017, the Court received the present action from
Johnson. It was unclear what sort of action, Johnson sought
to initiate. In his submissions, Johnson complained
extensively about the representation he received during his
initial federal habeas proceedings. By Memorandum Order
entered February 2, 2017, the Court conditionally docketed
the action as a regular civil action and informed him that he
would be responsible for a $350.00 filing fee and sent him
the documents for obtaining leave to proceed in forma
pauperis. (ECF No. 3.) Thereafter, Johnson submitted
in forma pauperis affidavits wherein he clarified
that he was seeking to bring a "petition for writ,
" (ECF No. 5, at 1) and "habeas corpus." (ECF
No. 10.) Accordingly, by Memorandum Order entered on May 10,
2017, the Court informed Johnson that his petition for a writ
of habeas corpus would be filed upon payment of the $5.00
filing fee. (ECF No. 17.) On June 23, 2017, Johnson paid the
$5.00 filing fee. (ECF No. 15.)
Memorandum Order entered on August 2, 2017, the Court
directed Johnson that:
In the United States District Court for the Eastern District
of Virginia, a pro se petition for a writ of habeas
corpus must be filed on a set of standardized forms.
See E.D. Va. Loc. Civ. R. 83.4(A). Accordingly, the
Clerk is DIRECTED to mail Johnson the standardized form for
filing a § 2254 petition. The Clerk shall WRITE the
civil action number for the present action on the form.
Johnson is DIRECTED to complete and return the form
to the Court within eleven (11) days of the date of entry
hereof, Johnson must state the facts that make his
detention unlawful. The Court's consideration of
Johnson's grounds for habeas relief shall be limited to
the grounds and supporting facts concisely set forth on this
standardized form and on any attached pages.
(ECF No. 16, at 2.) On August 16, 2017, Johnson filed his
petition for a writ of habeas corpus on the standardized form
("§ 2254 Petition, " ECF No.
The Current § 2254 Petition
§ 2254 Petition, Johnson once again challenges his
convictions for two counts of murder and two counts of use of
a firearm during the commission of a felony in the Circuit
Court. (§ 2254 Pet. I.) In his § 2254 Petition,
Johnson contends that he is entitled to relief because he
failed to receive the effective assistance of counsel during
his trial. (Id.)
Antiterrorism and Effective Death Penalty Act of 1996
restricted the jurisdiction of the district courts to hear
second or successive applications for federal habeas corpus
relief by prisoners attacking the validity of their
convictions and sentences by establishing a "gatekeeping
mechanism." Felker v. Turpin, 518 U.S. 651, 657
(1996) (internal quotation marks omitted). Specifically,
"[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application." 28 U.S.C. § 2244(b)(3)(A).
has not received permission from the United States Court of
Appeals for the Fourth Circuit to file this successive §
2254 Petition challenging his conviction in the Circuit
Court. Accordingly, the action will be dismissed without
prejudice for lack of jurisdiction. Johnson's Motion for
the Appointment of Counsel (ECF No. 19) will be denied. The
Court will deny a certificate of appealability.
appropriate Final Order will accompany this ...