United States v. Christopher Johnson

         USCA11 Case: 19-15046    Date Filed: 01/14/2021   Page: 1 of 8

                                                           [DO NOT PUBLISH]


                      FOR THE ELEVENTH CIRCUIT

                              No. 19-15046
                          Non-Argument Calendar

                   D.C. Docket No. 9:10-cr-80080-KAM-1


                                               Plaintiff - Appellee,



                                               Defendant - Appellant.


                 Appeal from the United States District Court
                     for the Southern District of Florida

                             (January 14, 2021)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

          USCA11 Case: 19-15046       Date Filed: 01/14/2021   Page: 2 of 8

      Christopher Johnson, pro se, appeals the district court’s denial of his post-

judgment motion to appoint counsel to assist him in filing a 28 U.S.C. § 2255 motion

to vacate. After careful review, we affirm.


      A grand jury indicted Johnson on one count of possessing a gun after a prior

felony conviction and one count of possessing ammunition after a prior felony

conviction, both in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Johnson entered

into a plea agreement in which he pled guilty to possessing a firearm after a felony

conviction. In exchange, prosecutors agreed to dismiss the ammunition possession

charge. On November 19, 2010, after accepting the plea, the district court sentenced

Johnson to 192-months’ imprisonment and a four-year term of supervised release.

      On June 23, 2014, Johnson filed a motion to vacate his sentence pursuant to

28 U.S.C. § 2255. In his motion, he argued that his sentence was a miscarriage of

justice and violated his due process rights under the Fifth Amendment based on the

United States Supreme Court’s decision in Descamps v. United States, 

570 U.S. 254

(2013). On April 29, 2015, the district court denied the § 2255 motion as untimely.

Johnson moved, under Federal Rules of Civil Procedure 60(b), to reopen the district

court’s consideration of the motion due to inadvertence or excusable neglect. The

district court denied that motion, finding that Johnson could have raised an equitable

tolling argument in his original § 2255 motion. In April 2016, Johnson filed a

          USCA11 Case: 19-15046        Date Filed: 01/14/2021   Page: 3 of 8

Federal Rule of Civil Procedure 59(e) motion to either amend the district court’s

Rule 60(b) decision or alternatively issue a certificate of appealability. The district

court denied that motion, finding it untimely and explaining that it would have

denied Johnson’s § 2255 motion on the merits if the motion was timely. The district

court also denied a certificate of appealability.

      On November 25, 2019, Johnson filed the motion on appeal, which asked the

district court to appoint him counsel to assist him with filing another § 2255 motion.

Johnson argued that the grand jury indictment alleged that Johnson was a felon in

possession of a firearm but did not allege that he knew of his status as a felon and

that, under Rehaif v. United States, 

139 S. Ct. 2191

(2019), such an allegation is

required because knowledge is an element of the offense. On November 27, 2019,

the district court denied the motion. The district court noted that Johnson sought an

attorney to assist with what would be a successive § 2255 motion. Because Johnson

had not obtained permission from this Court to file a § 2255 successive motion, the

district court found that it would not have jurisdiction to entertain such a motion.

Further, the district court doubted that Rehaif could provide the requested relief

given this Court’s decision in In re Palacios, 

931 F.3d 1314

(11th Cir. 2019). In

Palacios, this Court held that Rehaif neither announced a new constitutional rule nor

was made retroactive to cases on collateral review to allow for a successive petition

          USCA11 Case: 19-15046       Date Filed: 01/14/2021    Page: 4 of 8

under 28 U.S.C. § 2255(h)(2).

Id. at 1315.

Thus, the district court found that there

was no basis to appoint Johnson. This timely appeal followed.


       Whether a party has the right to counsel is a legal question that we review de

novo. United States v. Webb, 

565 F.3d 789

, 793 (11th Cir. 2009). If no such right

exists, we review the district court’s decision not to appoint counsel for an abuse of


Id. III.


       On appeal, Johnson raises three issues—none of which address how the

district court erred in denying his motion to appoint counsel. Instead, he argues that:

(1) our decision in McCarthan v. Director of Goodwill Industries-Suncoast, Inc.,

851 F.3d 1076

(11th Cir. 2017) (en banc), violates the Suspension Clause; (2) he is

entitled to pre-Antiterrorism and Effective Death Penalty Act (“AEDPA”)

authorization to file for relief under Rehaif; and (3) the AEDPA is unconstitutional.

While we liberally construe the pleadings of pro se defendants such as Johnson,

Jones v. Fla. Parole Comm’n, 

787 F.3d 1105

, 1107 (11th Cir. 2015), issues not

briefed on appeal by a pro se litigant are deemed abandoned, see Timson v. Sampson,

518 F.3d 870

, 874 (11th Cir. 2008).

       As an initial matter, Johnson has likely abandoned his challenge to the district

court’s denial of his motion to appoint counsel because he does not explain why the

          USCA11 Case: 19-15046       Date Filed: 01/14/2021    Page: 5 of 8

district court erred in that respect in his brief. See

id. We nonetheless will


the issue on the merits. The right for an indigent party to have a court-appointed

attorney emanates from three different sources. First, the Fifth Amendment’s Due

Process Clause may provide the right when “fundamental fairness” requires it.

Webb, 565 F.3d at 794

(quoting Gagnon v. Scarpelli, 

411 U.S. 778

, 790 (1973)).

Second, the Sixth Amendment provides the right at “critical stages of a criminal

prosecution,” including during a first appeal.

Id. (quoting Williams v.


87 F.3d 1204

, 1209 (11th Cir.1996)). Third, a defendant has a statutory right to counsel

under 18 U.S.C. § 3006A when: (1) the defendant is entitled to appointment of

counsel under the Sixth Amendment to the Constitution; (2) the defendant “is under

arrest, [and] such representation is required by law”; and (3) the district court

determines that “the interests of justice so require” when a defendant seeks relief

under 28 U.S.C. §§ 2241, 2254, or 2255. 18 U.S.C. § 3006A. The Rules Governing

2254 Cases and Section 2255 Proceedings, in turn, require counsel to be appointed

for indigent parties if necessary for effective discovery or if an evidentiary hearing

is warranted. Rules Governing Section 2254 Cases and Section 2255 Proceedings,

Rules 6(a), 8(c).

      Johnson has not shown that he has a right to counsel under any of these

sources. With respect to the Fifth Amendment’s Due Process Clause, Johnson has

not shown that a lack of court-appointed counsel would result in a fundamentally

          USCA11 Case: 19-15046       Date Filed: 01/14/2021    Page: 6 of 8

unfair proceeding, implicating his rights under the Due Process Clause. As to the

Sixth Amendment, it only applies to criminal proceedings, whereas a § 2255 motion

is civil. Barbour v. Haley, 

471 F.3d 1222

, 1231 (11th Cir. 2006). While Johnson

argues on appeal the merits of the claims he would raise if allowed to file a

successive § 2255 motion, he has not demonstrated that the interests of justice

require that an attorney litigate these claims on his behalf. Furthermore, Johnson

has not shown that an attorney is required to help with an evidentiary hearing or to

provide effective discovery. Accordingly, we conclude that Johnson is not entitled,

as a matter of law, to appointed counsel.

      When a party does not have a constitutional, statutory, or rule-based right to

counsel, the district court may exercise its discretion as to whether to appoint

counsel. See 

Webb, 565 F.3d at 795

; see also 28 U.S.C. § 2255(g) (allowing a court

to appoint counsel for proceedings brought under that section). We conclude that

the district court did not abuse its discretion in denying Johnson counsel to assist

with a § 2255 motion.

      First, the district court acted within its discretion when it considered Johnson’s

inability to file another § 2255 motion because he has not obtained the requisite

authorization for a successive motion from this Court. 28 U.S.C. § 2244(b)(3)(A).

Further, the district court expressed doubt as to Johnson’s ability to obtain such an

authorization. To obtain permission for a successive petition, Johnson would have

          USCA11 Case: 19-15046         Date Filed: 01/14/2021    Page: 7 of 8

to show, as relevant here, that his “claim relies on a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable.”

Id. § 2244(b)(2)(A). If

Johnson received the appointed

counsel he sought, it would be to seek relief based on the Supreme Court’s decision

in Rehaif. The district court correctly noted that, in In re Palacios, we held that

Rehaif did not create a constitutional rule retroactively applicable on collateral 

relief. 931 F.3d at 1315


      Johnson seems to argue that to the extent that a successive petition would not

be authorized, the saving clause of § 2255(e) allows him to file a habeas petition

pursuant to § 2241. However, our decision in McCarthan precludes that result. 

See 851 F.3d at 1090

. Johnson has not demonstrated that the district court abused its

discretion by not appointing counsel to help him relitigate the holding in McCarthan.

      As to Johnson’s contentions that he is entitled to pre-AEDPA relief and that

AEDPA is unconstitutional, these arguments lack merit. The Supreme Court held

in Felker v. Turpin, 

518 U.S. 651

, 664 (1996), that AEDPA does not violate the

Suspension Clause of the Constitution, and Johnson provides no binding legal

authority for the proposition that AEDPA should not apply in his case.


      Accordingly, we affirm the district court’s denial of Johnson’s motion to

appoint counsel.

  USCA11 Case: 19-15046   Date Filed: 01/14/2021   Page: 8 of 8



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