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Keith Bennett Johnson, #14092-026 v. United States of America


September 9, 2011


The opinion of the court was delivered by: Herndon, Chief Judge:


This matter is before the Court on petitioner's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. On January 5, 2010, petitioner was found guilty of retaliation against a federal law enforcement officer in violation of 18 U.S.C. § 1521 in the Central District of Illinois. Because the victim of the offense was a probation officer in the Central District of Illinois, the Chief District Judge recused himself, as well as the other judges in that district, from the case on July 24, 2009, and ordered that it be transferred to the Southern District, where it was heard by the undersigned Judge. On May 6, 2010, petitioner was sentenced to 41 months' imprisonment in the Bureau of Prisons, 3 years supervised release, and was ordered to pay a special assessment of $100. Petitioner did not appeal this judgment to the Seventh Circuit or the United States' Supreme Court. Instead, petitioner filed a motion for dismissal of the indictment. U.S. v. Johnson, No. 09-20049-DRH, 2009 WL 3672075 (C.D. Ill. Oct. 28, 2009). Petitioner argued that the Court lacked personal jurisdiction over him, that the indictment contained defects, and the Court lacked subject-matter jurisdiction. Id. The Court addressed each of these allegations, and ultimately denied the motion. Id.

Petitioner then filed a motion for new trial pursuant to Federal Rule of Criminal Procedure 33, claiming that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt. U.S. v. Johnson, No. 09-20049-DRH, 2010 WL 431686 (C.D. Ill. Jan. 29, 2010). The Court determined that the evidence presented at trial was sufficient to support the guilty verdict, and thus denied the motion. Id.

Petitioner later filed what he titled an ex parte motion pro re nata on September 21, 2010. See U.S. v. Bennett-Johnson, No. 09-20049-DRH, 2010 WL 4687923 (C.D. Ill. Oct. 29, 2010). The undersigned dismissed this motion for lack of jurisdiction, explaining that though his motion was titled as pro re nata, it was in substance a § 2255 motion, and because petitioner refused to allow the Court to reclassify the motion as such, the Court did not have authority to entertain the motion once the judgment was entered. Id. at *2.

The instant action was filed on April 11, 2011, in the Central District. Because the undersigned is seated in the Southern District, this action was transferred to this Court for review. See Doc. 3. In his § 2255 motion currently before the Court, petitioner raises three grounds for relief: (1) Ineffective assistance of counsel-Petitioner alleges that his appointed trial counsel admitted to the jury during closing arguments that he believed that the petitioner was guilty of the crime with which he was charged, failed to provide the jury with certain facts that would have weighed in petitioner's favor, and failed to challenge the perjured statements of the State's witnesses; (2) Innocence- Petitioner claims that he did not act out of retaliation, for which he was found guilty, but instead acted because the federal officer had failed to perform his duties. Further, the lien that petitioner filed was not effective, making it void, thus he was actually innocent of the crime of filing a false lien; and (3) Prosecutorial Misconduct- Petitioner lastly alleges that the prosecutor knowingly allowed witnesses to make false statements, and himself gave false statements to the jury during trial.

The Court ORDERS the government to file a response to petitioner's motion within THIRTY (30) DAYS of the date of this Order. The government shall, as part of its response, attach all relevant portions of the record.


David R. Herndon Chief Judge United States District Court

2011.09.09 06:18:52 -05'00'


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