Case: 12-5607 Document: 27-1 Filed: 12/06/2012 Page: 1 (1 of 4)

No. 12-5607

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT FILED
Dec 06, 2012
) DEBORAH S. HUNT, Clerk
In re: ALICE MARIE JOHNSON, )
) ORDER
Movant. )
)
)

Before: SILER, KETHLEDGE, and WHITE, Circuit Judges.

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

Cir. Mar. 1, 1999).

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

(6th Cir. Dec. 7, 2005).

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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

made retroactive to cases on collateral review. 28 U.S.C. §§ 2244(b), 2255(h).

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).
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No. 12-5607
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Accordingly, Johnson’s application for leave to file a second or successive motion to vacate

her sentence is denied. Johnson’s remaining motions are denied as moot.

ENTERED BY ORDER OF THE COURT

Clerk
 Case: 12-5607 Document: 27-2 Filed: 12/06/2012 Page: 1 (4 of 4)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540
Deborah S. Hunt POTTER STEWART U.S. COURTHOUSE Tel. (513) 564-7000
Clerk CINCINNATI, OHIO 45202-3988 www.ca6.uscourts.gov

Filed: December 06, 2012

Mr. Stuart J. Canale

U.S. Attorney's Office
167 N. Main Street
Suite 800
Memphis, TN 38103

Alice Marie Johnson

F.M.C. Carswell
P.O. Box 27137
Fort Worth, TX 76127

Re: Case No. 12-5607, In re: Alice Johnson v. USA

Originating Case No. : 2:94-cr-20256

Dear Ms. Johnson and Counsel,

The Court issued the enclosed (Order/Opinion) today in this case.

Sincerely yours,

s/Michelle M. Davis
Case Manager
Direct Dial No. 513-564-7025

cc: Mr. Thomas M. Gould

Enclosure

No mandate to issue