Escolar Documentos
Profissional Documentos
Cultura Documentos
No. 12-5607
Alice Marie Johnson, a pro se federal prisoner, has applied for an order authorizing the
district court to consider a second or successive motion to vacate, set aside, or correct her sentence
under 28 U.S.C. § 2255. See 28 U.S.C. § 2244(b). Johnson has also filed motions for recusal and
expungement of records.
In 1997, a jury convicted Johnson of conspiracy to possess with intent to distribute cocaine;
attempted possession with intent to distribute cocaine; conspiracy to commit money laundering; and
money laundering and structuring. The district court imposed a combined sentence of life in prison.
This court affirmed Johnson’s convictions and sentence. United States v. Johnson, No. 97-5556 (6th
Thereafter, Johnson filed her initial motion to vacate her sentence under § 2255 asserting,
among other things, claims of ineffective assistance of counsel, prosecutorial misconduct, racial
discrimination, and withholding of exculpatory evidence. The district court denied Johnson’s claims,
and this court denied her motion for a certificate of appealability. Johnson v. United States, No. 02-
5381 (6th Cir. Sept. 26, 2002). Subsequently, Johnson applied for leave to file a second or
successive motion to vacate. This court denied the motion. Johnson v. United States, No. 05-5385
No. 12-5607
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Johnson has filed another application for leave to file a successive motion to vacate. See
28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Before we may grant a request to file a successive motion to
vacate, the applicant must make a prima facie showing that there exists: (1) newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, sufficiently establishes by
clear and convincing evidence that no reasonable factfinder would have found the applicant guilty
of the offense; or (2) a previously unavailable rule of constitutional law that the Supreme Court has
Johnson has failed to demonstrate either criterion for obtaining authorization to file a motion
to vacate her sentence. In her immediate motion, Johnson alleges ineffective assistance of counsel
prior to trial and a violation of her right to a speedy trial. In support of her claims, Johnson presents
her docket record and an affidavit from her daughter, co-defendant Catina Johnson. The docket
record is not newly discovered evidence. If relevant, it should have been presented in Johnson’s
initial motion to vacate her sentence. The affidavit, dated January 19, 2012, is evidence that purports
to support Johnson’s allegation that she was denied an initial appearance for six days, but it contains
nothing that establishes Johnson’s innocence by clear and convincing evidence. Therefore, both the
docket record and the affidavit fail to satisfy § 2255(h)(1)’s newly-discovered-evidence prong.
Johnson argues that two recent Supreme Court decisions, Martinez v. Ryan, 132 S. Ct. 1309
(2012), and United States v. Tinklenberg, 131 S. Ct. 2007 (2011), entitle her to relief. In neither
decision did the Supreme Court set out a new rule of constitutional law. In Martinez, the Court
addressed a narrow issue, holding that ineffective assistance of counsel in an initial-review collateral
proceeding may serve as cause to excuse a petitioner’s procedural default of a claim of ineffective
assistance at trial. Martinez, 132 S. Ct. at 1315. In Tinklenberg, the Court interpreted the statutory
language of the Speedy Trial Act. Tinklenberg, 131 S. Ct. at 2010-11. Because neither Supreme
Court decision set out a rule of constitutional law, Johnson has failed to meet the requirements of
§ 2255(h)(2).
Case: 12-5607 Document: 27-1 Filed: 12/06/2012 Page: 3 (3 of 4)
No. 12-5607
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Accordingly, Johnson’s application for leave to file a second or successive motion to vacate
Clerk
Case: 12-5607 Document: 27-2 Filed: 12/06/2012 Page: 1 (4 of 4)
Sincerely yours,
s/Michelle M. Davis
Case Manager
Direct Dial No. 513-564-7025
Enclosure
No mandate to issue