United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO ARREST
JUDGMENT [ECF NO. 956]
Victoria A. Roberts, United States District Judge.
Johnson (“Johnson”) moves the Court to arrest
judgment and overturn his conviction for murder with a
firearm under 18 U.S.C. § 924(j). He says a recent
Supreme Court decision, United States v. Davis, 139
S.Ct. 2319 (2019), retroactively deprives this Court of
jurisdiction over his case. Johnson also relies on Fed. R.
Crim. P 34, which says, “Upon the defendant's
motion or on its own, the court must arrest judgment if the
court does not have jurisdiction of the charged
Johnson was convicted of: (Count 1) conspiracy to commit bank
robbery in violation of 18 U.S.C. § 371; (Count 2) bank
robbery resulting in death in violation of 18 U.S.C. §
2113(a) and (e) and; (Count 3) murder with a firearm during a
crime of violence in violation of 18 U.S.C. § 924(j).
This motion only concerns Johnson's § 924(j)
held that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally
vague. Johnson's conviction falls under § 924(j),
which details sentencing requirements for convictions
pertaining to § 924(c). Johnson says Davis
means this Court did not have jurisdiction to hear his case,
and he is entitled to immediate release from prison.
Court DENIES Johnson's motion.
motion fails on procedural and substantive grounds.
relies on Fed. R. Crim. P. 34. Rule 34(a), which requires a
defendant to make a motion “within 14 days after the
court accepts a verdict or finding of guilty, or after a plea
of guilty or nolo contendere” if the Court “does
not have jurisdiction of the charged offense.” Johnson
was convicted in 2008; his motion falls well outside the
fourteen-day time limit.
that reason alone, Johnson's request is procedurally
barred. Johnson says the Court should equitably toll the
statute of limitations and allow his motion to proceed. Rule
45(b)(1) states “when an act must or may be done within
a specified period, the court on its own may extend the time,
or for good cause may do so on a party's motion made . .
. after the time expires if the party failed to act because
of excusable neglect.” Fed. R. Crim. P. 45(b)(1).
Johnson bases his equitable tolling argument on
“excusable neglect.” He says since Davis
was not decided until 2019, the grounds for his motion did
not exist at the time of his conviction.
Davis decision has nothing to do with jurisdiction.
Davis establishes a new principle of law that is
grounds for collateral appeal of select convictions; it does
not retroactively deprive courts of jurisdiction. Fed. R.
Crim. P. 34 is not an appropriate vehicle for the relief
Johnson seeks. Judgment can be arrested only where courts
lack jurisdiction in the first instance.
essentially asks the Court to vacate his sentence because he
says the sentence was based on an unconstitutionally vague
law. Such a claim is more cognizable under 28 U.S.C. §
2255. This statute allows a prisoner to claim the right to be
released “upon the ground that the sentence imposed was
in violation of the Constitution or laws of the United States
. . . or otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). All motions in the Eastern District of
Michigan based upon the Davis decision have been
considered under 28 U.S.C. § 2255.
Johnson to file a motion under § 2255, however, would be
an exercise in futility. He has already filed a § 2255
petition. Johnson moved to vacate his sentence under 28
U.S.C. § 2255 for basically the same reason. This Court
dismissed his appeal as untimely, and the Sixth Circuit
affirmed. [ECF No. 941]
a new § 2255 motion might be considered a successive
habeas petition, subject to dismissal. “A claim
presented in a second or successive habeas corpus application
. . . shall be dismissed unless the applicant show that the
claim relies on a new rule of constitutional law . . . that
was previously unavailable.” 28 U.S.C. ...